Twentieth century internationalism in law

European Journal of International Law

Volumn 18, Issue 5, 2007, Pages 785-814

  Spiermann, Ole ^a  

^a UNIVERSITY OF COPENHAGEN   (Denmark)

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EID: 39049156120     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm045     Document Type: Article

References (178)

1. P. Allot, The Health of Nations: Society and Law beyond the State (2002), at 183.
2. Although the UN had been brought into being by'the vast majority of the members of the international community',according to Reparation for Injuries suffered in the Service of the United Nations [1949] ICJ Rep 174, at 185, more States were outside the organization in 1945 than is now the case; at present the only State not a member of the UN would seem to be the Vatican City: See J. Crawford, The Creation of States in International law (2nd edn., 2006), at 727-739 (Montenegro to be added subsequent to publication).
3. The Renard, 165 ER 51 at 52 (1778). The High Court continued: '[t]he usage is plainly as arbitrary as it is uncertain; and who shall decide, when doctors disagree? Bynkershoek, as it is natural to every writer or speaker who comes after another, is delighted to contradict Grotius'.
4. G. Feaver, From Status to Contract: A Biography of Sir Henry Maine 1822-1888 (1969), at 260.
5. H.S. Maine, International law (1888), at 1-2, 13-14,16, 52-53, 110 and 215.
6. Cf. L. Oppenheim, Die Zukunft des Völkerrecht (1911), at 11
7. 'Buehrecht' was translated into 'book-law' in the English edition: L. Oppenheim, The Future of International Law (1921), at 5.
8. Art. 38(1)(4)of the Statute of the Permanent Court of International Justice.
9. That the impact of Buchrecht diminished in doctoral theses of Danish provenance, albeit slowly and only in the course of time, may be demonstrated by comparing M. Sorensen, Les sources du droit international. Etude sur la jurisprudence de la Cour permanente de Justice internationale (1946).
10. C.A. Nørgaard, The Position of the Individual in International law (1962)
11. and I. Foighel, Nationalization and Compensation (1964). With regard to the influence exercised by the towering figure of Alf Ross see Spiermann, 'A National Lawyer Takes Stock: Professor Ross'Textbook And Other Forays Into International Law', 14 EJIL (2003) 675.
12. Jennings, 'International Lawyers and the Progressive Development of International Law', in J. Mákarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Kryszt of Skubiszewski (1996), at 413, 413.
13. See also William, 'International Law and the Controversy concerning the word Law', 22 British Yearbk Int'l L (1945) 146. A different view was advocated in H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), at 22, n. 1.
14. In principle, international law could also be seen as a number of uncoordinated legal systems, all of which are separate from national legal systems: 'the system of international law consists of erratic parts and elements which are differently structured so that one can hardly speak of a homogeneous nature of international law. This system is full of universal, regional or even bilateral systems, subsystems and sub-subsystems of different levels of legal integration': Hafner, 'Risks ensuing from Fragmentation of International Law', in Report of the International law Commission: Fifty-second session, UN Doc. A/55/10 (2000), at 321.
15. G.W.F. Hegel, Grundlinien der Philosophie des Rechts (Cambridge edn., 1991), at 281 and 366-371.
16. Island of Palmas Case, 2 RIAA (1928) 829, at 839, Trail Smelter Case, 3 RIAA (1941) 1938, at 1965, Corfu Channel Case [1949] ICJ Rep 4, at 22, Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, at para. 29, and Gabcíkovo-Nagymaros Project [1997] ICJ Rep 7, at paras 53, 112 and 140.
17. J. Bentham, An Introduction to the Principles of Morals and Legislation (2nd edn., 1823), at 326. The first edition appeared in 1789.
18. Reparation for Injuries suffered in the Service of the United Nations [1949] ICJ Rep 174, at 179. It was a definition relied upon in preparing the ICSID Convention: See ICSID, History of the ICSID Convention-Documents Concerning the Origin and the Formulation of the Convention (1968) ii, at 738 and 971.
19. Legal personality ties up with secondary rules on responsibility, how it is incurred (obligations) and invoked (rights), as opposed to 'tertiary' rules on dispute settlement:,Sse, e.g., Amoco International Finance Corporation v. Iran, 83 Int'l LR (1987) 501, at para. 103 and Fisheries Jurisdiction (Spain v. Canada) [1998]
20. ICJ Rep 432, at para. 56 and also, as regards Art. 2 of the Articles on Responsibility of Statcs for Internationally Wrongful Acts, J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), at 84.
21. Kant, 'Zum ewigen Frieden: Ein philosophischer Entwurf, in L. Kant, Political Writings (Cambridge edn., 1991), at 93, 103 ('leldige Tröster).
22. Jackson, 'Address', 39 Proceedings of the Annual Meeting of the American Society of International Law (1945) 10, at 15.
23. F.C. von Savigny, A Treatise on the Conflict of Laws (trans., 2nd edn., 1869), at 70.
24. E. Rabel, The Conflict of Laws: A Comparative Study (2nd edn. by U. Drobnig, 1958), 1, at 8.
25. Also diplomatic interventions by States in this field were lacldng: See Aubry, 'De la notion de territorialité en droit international privé', 28 Clunet (1901) 643, at 651.
26. Case of the SS Lotus, PCIJ Series A No. 10 (1927)
27. see O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (2005),at 247-263.
28. Case concerning the Payment of Various Serbian Loans issued in France PCIJ Series A No. 20 (1929), at 41.
29. Graveson, 'Comparative Aspects of the General Principles of Private International Law', 109 Recuell des Cours (1963) 7, at 13.
30. Kahn, 'Über Inhalt, Natur and Methode des internationalen Privatrechts', 40 Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts (1899) 1, at 87 as quoted in J.H. Beale, A Treatise on the Conflict of Laws (1935), iii, at 1962 (mistakenly referring to 18).
31. See also D. Anzilotti, Studi critici di diritto internazionale privato (1898), at 117-130
32. and D. Anzilotti, II diritto internazionale nei giudizzi interni (1905), at 122-158.
33. F. Kahn, Abhandlungen zum internationalen Privatrecht (1928), i, at 286-287, referring to the resolution reproduced in 1 Annuaire do I'Institut de droit international (1877) at 123-124.
34. E.g., de La Pradelle, 'De la délimitation do Droit International Public et du.Droit International Privé', 1 Nouvelle revue de droit international privé (1934) 9, at 19,
35. Ago, 'Rèles.générales dqs conflits des lois', 58 Recueil des Cours (1936) 247, at 278-294 and 301,
36. H. Batiffol and P. Lagarde, Truité de droit international privé (8th edn., 1993), i, at 12-13
37. and J.G. Collier, Conflict of Laws (3rd edn., 2001) at 5.
38. For discussion see, among others, M.B. Akehurst, The law governing Employment in International Organizations (1967), at 249-263
39. and C.F. Amerasinghe, The Law of the international Civil Service (2nd edn., 1994), at 3-25.
40. This is not to imply that the Mixed Arbitral Tribunals applied international law only, which they did not. The appeal from a judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal decided upon by the Permanent Court turned on Hungarian law, including legal personality up-der Hungarian Law, thus, the oft-quoted dictum that 'it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself had no direct bearing on international law, cf. Appeal from a Judgment of the Hungaro-Czechoslovak Mixed-Arbitral Tribunal (the Peter Pázmány University v. The State of Czechoslovakia), PCJI Series A/B No. 61 (1933), at 231.
41. Questions relating to Settlers of German Origin in Poland, PCIJ Series B No. 6 (1923), at 25.
42. Questions concerning the Acquisition of Polish Nationality, PCIJ Series B No. 7 (1923), at 16.
43. A. Ross, A Textbook in International law (1947), at 30 and also 22, 176, and 225,
44. referring to R. Knubben, Die Subjekte des Völkerrechts (1928 , at 415-416. The river state was evidently a fiction, but not a fiction that could claim statehood under international law.
45. Jurisdiction of the European Commission of the Danube between Galatz and Brada, PCIJ Series A No. 14 (1927), at 64
46. see also the description of powers and practices: ibid., at 42-46 and 48-53.
47. Denunciation of the Treaty of November 2nd, 1865, between China and Belgium, PCIJ Series A No. 8 (1927), at 6-8.
48. Jurisdiction of the Courts of Danzig, PCIJ Series B No. 15 (1928), at 18.
49. Ibid., at 18 and 26-27
50. and see D. Anzilotti, Cours de droit international (1929), at 407-408.
51. Jurisdiction of the Courts of Danzig, supra note 35, at 18.
52. Rights of Minorities in Upper Silesia (Minority Schools), PCIJ Series A No. 15 (1928), at 32.
53. Steiner and Gross v. Poland, 1 Sammlung von Entscheidungen des Schiedsgerichtes für Oberschlesien (1928), at 10.
54. Ibid., at 22 as translated in 4 Annual Digest of Public International Law Cases 291, at 292.
55. See also G. Kaeckenbeeck, The International Experiment of Upper Silesia (1942), at 49-54.
56. Steiner and Gross v. Poland, supra note 39, at 32.
57. Art. 227 of the Versailles Treaty had provided for the Allied and Associated Powers indicting the former German Kaiser for 'a supreme offence against international morality and the sanctity of treaties', an opaque phrase due to American opposition and a compromise leaving no real prospect for a trial. Art. 228 and similar provisions in other peace treaties were to the effect that 'persons accused of having committed acts in violation of the laws and customs of law' could be brought before military tribunals.
58. Three of the 22 defendants appearing in court were acquitted.
59. See, respectively, US v. Flick and Others, 9 War Crimes Reports (1947) 1, at 18,
60. US v. Krupp and Others, 10 War Crimes Reports (1948) 69, at 150
61. and US v. Ohlendorf and Others, 15 Int'l LR (1948) 656, at 659.
62. Ex Parte Quirin, 317 US 1 (1942), at 27-28.
63. Uk v. Kramer and Others, 2 War Crimes Reports (1945) 1, at 149 et seq.
64. Art. 6 was found to be binding upon the Tribunal: See US, France, UK, and USSR v. Göring and Others, 1 Trial of the Major War Criminals (1946) 411, at 414, 459, 461 and 497.
65. Ibid., at 461.
66. Ibid.
67. Ibid., at 463-464.
68. Ibid., at 464-465,
69. and see supra note 42.
70. Ibid., at 465.
71. At a later point, it was added: '[t]hat violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument': Ibid., at 497.
72. Ibid., at 466.
73. Ibid., at 465.
74. The notion of crimes against humanity brings to mind the Martens clause dating back to the Hague Peace Conferences of 1899 and 1907: '[u]ntil a more complete code of the laws of war is issued, the high contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience'. In 1949, the ICJ referred to 'elementary considerations of humanity': Corfu Channel Case [1949] ICJ Rep 4, at 22.
75. Cf. H. Kelsen, Peace through law (1944), at 82 and 97.
76. US, France, UK, and USSR v. Göring and Others, supra note 47, at 462.
77. ibid., at 462.
78. See resolutions 95(I) and 177(II).
79. Resolution 260(III).
80. See also Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1996] ICJ Rep 595, at para. 31.
81. See also resolution 96(1), according to which genocide'is contrary to moral law and to the spirit and aims of the United Nations', 'a matter of international concern', and 'a crime under international law which the civilized world condemns'.
82. Reservations to the Convention on the Prevention of the Crime of Genocide [1951] ICJ Rep 15, at 23.
83. Resolution 217(III).
84. Wemhoff v. Germany, ECHR Series A No. 7 (1968), at para. 8.
85. Ireland v. United Kingdom, ECHR 'Series A No. 25 (1978), at para. 239. Similarly, e.g., from the Inter-American Court of Human Rights, Restrictions to the Death Penalty, Advisory Opinion OC-3/83, 70 Int'l LR (1983) 449, at para. 50 and, from the UN Human Rights Committee, General Comment No. 24, 107 Int'l LR (1994) 65, at 69-70.
86. Soering v. United Kingdom, ECHR Series A No. 161 (1989), at para. 87.
87. Loizidou v. Turkey (Preliminary Objections), ECHR Series A No. 310 (1995), at para. 75 and App. No, 45036/98,
88. Bosphorus v. Ireland (30 June 2005), at para 156 (the Convention serving as 'a constitutional instrument of European public order').
89. See App. Nos 46827/99 and 46951/99, Mamatkulov and Abdurasulovic v. Turkey (6 Feb. 2003), at para. 106.
90. Supranationalism brings the European Communities to mind: See Bosphorus v. Ireland, supra note 68, at para 150, referring to Case 6/64, Costa v. ENEL, [1964] ECR 585, which will be discussed in the following section.
91. Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), ECHR Series A No. 6 (1968), at 32.
92. See Tyrer v. United Kingdom, ECHR Series A No. 26 (1978), at para. 31
93. and Marckx v. Belgium, ECHR Series A No. 31 (1979), at para. 41.
94. Engel v. The Netherlands, ECHR Series A No. 22 (1976), at paras. 81, and 82, respectively.
95. Airey v. Ireland ECHR Series A No. 32 (1979), at para. 24
96. Cf. Ibid., at para. 26.
97. Wemhoff v. Germany, supra note 65, at para. 12.
98. See also, e.g., Belgian Unguistics Case, supra note, 70, at 24-25,
99. Handyside v. United Kingdom, ECHR Series A No. 24 (1976), at para. 58 and 50
100. and Sunday Times v. United Kingdom (No. 1), ECHR Series A No. 30 (1979), at para. 59.
101. De Wilde, Ooms and Versyp v. Belgium, ECHR Series A No. 12 (1971), at para. 93.
102. As for the notion of good faith, the International Law Commission made observations to the effect that 'the obligation must not be evaded by a merely literal application of the clauses' and that 'a party must abstain from acts calculated to frustrate the object and purpose of the treaty': See [1966] II Yearbk Int'l LC 211 and 221. Repeated invocations of the pacta sunt servanda principle and the notion of good faith bear witness to the conception of the State as an international law subject losing ground: Systems secure in their normative character do not need to repeat themselves.
103. Cf. Shany, 'Toward a General Margin of Appreciation Doctrine in International Law', 16, BJIL (2005) 907, at 921.
104. Waldock, 'The Effectiveness of the System set up by the European Convention an Human Rights', 1 Human Rights LJ (1980) 1, at 9.
105. The following is based in part on Spiermann, 'The Other Side of the Story: An Unpopular Essay on, the Making of the European Community Legal Order', 10 EJIL (1999) 763.
106. Opinion 1/91, Draft European Econondc Area Agreement [1991] ECR I-6079, at paras 20-21.
107. Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1, at 12.
108. Mancini and Keeling, 'Democracy and the European Court of Justice', 57 MLR (1994) 175, at 183.
109. Case 6/64, Costa v. ENEL [1964] ECR 585, at 593.
110. Ibid.
111. Ibid.
112. This argument had been fuelled by the judgment of the Italian Constitutional Court in Costa v. Ente Nazionale per l'Energia Elettrica [1964] CMLR 425, at 436.
113. The qualification of the EEC Treaty as a 'constitutional charter' originated as a most explicit corroboration of the Court's part of the rule of law: Case 294/83, Les Verts v. Parliament [1986] ECR 1339, at para. 23.
114. Cf. Case E-2/97, Mag Instrument Inc. v. California Trading Company [1997] EFTA Court Rep 127, at para. 25
115. and Case E-9/97, Sveinbjörnsdóttir v. Iceland [1998] EETA Court Rep 95, at para. 59.
116. Case 6/64, supra note 84, at 593-594.
117. Cf. Weiler, 'The Transformation of Europe', 100 Yale LJ(1991) 2403, at 2421-2422
118. and Lecourt, 'Quel eut été le droit des Communautés sans les arrêts de 1963 et 1964?', in L'Europe et le droit: Mélanges en hommage à Jean Boulouis (1991), at 349.
119. Cf. Weiler, 'Rewriting Van Gend & Loos: Towards a Normative Theory of ECJ Hermeneutics", in O. Wiklund (ed.), Judicial Discretion in European Perspective (2003), at 150.
120. E.g., Riese, 'Über den Rechtssehutz innerhalb der Europäischen Gemeinschaften', 1 Europarecht (1966) 24, at 27,
121. Donner, 'The Constitutional Powers of the Court of Justice of the European Communities', 11 CMLRev (1974) 127, at 135,
122. Kutscher, 'Methods of Interpretation as Seen by a Judge at the Court of Justice', in Judicial and Academic Conference 27-28 September 1976 (1976), i, at 1, 31
123. and Mancini, 'The Making of a Constitution for Europe', 26 CMLRev (1989) 595, at 596.
124. On the other hand, when Community lawyers express doubt as to the European Court's style of interpretation, that is when the Court is criticized for going too far, one sees prominent scholars advocate an alternative style of interpretation that is confined to the text, or to the original intention of the Contracting Parties: E.g., H. Rasmussen, On Law and Policy in the European Court of Justice (1986), at 25-33
125. and T.C. Hartley, Constitutional Problems of the European Union (1999), at 22-42.
126. Case 33/70, SACE [1970] ECR 277, at para. 12.
127. Case 9/70, Grad [1970] ECR 837, at para. 5. Case 41/74, Van Duyn [1974] 1337, at para. 12,
128. Case 148/78, Ratti [1979] ECR 1629, at paras 21-22,
129. and CaseC-91,/9L2, Dori [1994] ECRI-3325, at paras 23-24.
130. Joined Cases C-46 and 48/93, Brasserie du Pêcheur [1996] ECRI-1029, at paras 44-47, which followed Joined Cases C-6 and 9/90, Francovich [1991] ECRI-5357, at para. 31.
131. Case concerning the Payment of Various Serbian Loans issued in France PCIJ Seiies A No. 20 (1929), at 33, 36, and 41
132. and see also for the pacta sunt servanda principle Case concerning the Payment in Gold of Brazilian Federal Loans contracted in France, PCIJ Series A No. 21 (1929), at 116 as well as 111-112, 114-115, 118 and 120.
133. Lena Goldfields Arbitration, 5 Annual Digest (1930) 3, at 3
134. also reproduced in 36 Cornell LQ (1950) 42, at para. 22,
135. Veeder, 'The Lena Goldfields Arbitration: The Historical Roots of Three Ideas', 47 Int'l Comp. LQ (1998) 747, at 772.
136. E.g., Administration of Posts and Telegraphs of Czechoslovakia v. Radio Corporation of America, 30 AJIL (1932) 523, at 530-531,
137. Alsing Trading Company Ltd. v. Greece, 23 Int'l LR (1954) 633, at 637-638, 641-643, 645, 649-651,
138. and 656 and Monsieur Y v. l'Etat Y, 1 ICC Awards (1968) 218, at 220
139. and ICC Award No. 3327, 1 ICC Awards (1981) 433, at 434.
140. See also AGIP v. Congo, 1 ICSID Rep (1979) 306, at 323.
141. Société Rialet v. Ethiopia, 8 Recueil des décisions des Tribanaux Arbitraux Mixtes (1929) 742, at 748,
142. Petroleum Development Ltd. v. Sheikh of Abu Dhabi, 18 Int'l LR (1951) 144, at 149, Ruler of Qatar v. International Marine Oil Company Ltd., 20 Int'l LR (1953) 534, at 544-545,
143. and Saudi Arabia v. Aramco, 27 Int'l LR (1958) 117, at 163 and 168-169.
144. Saudi Arabia v. Aramco, supra note 98, at 167 and also 165.
145. Ibid.
146. Ibid., 171 and also 191
147. see also ibid., 156 concerning procedural law.
148. Ibid., 168 and also 191-192.
149. Ibid., 169 and 171.
150. See also from the period Sapphire v. NIOC, 35 Int'l LR (1963) 136, at 171 and 173.
151. See Elf Aquitaine Iran v. National Iranian Oil Company, 96 Int'l LR (1982) 254, at para. 19
152. and Company Z and others v. State Organization ABC, 8 Yearbook of Commercial Arbitration (1982) 94, at 108-109 and 114.
153. See, in particular, McNair, 'The General Principles of Law Recognized by Civilized Nations', 33 BYIL (1957) 1, at 6, 10,
154. and 19 and also Bourquin, 'Arbitration and Economic Development Agreements', 15 The Business Lawyer (1959-1960) 860, at 869.
155. See A. Verdross, Völkerrecht (2nd edn., 1950), at 106-107.
156. See Verdross, 'The Status of Foreign Private Interests Stemming from Economic Deveplopment Agreements with Arbitration Clauses', 9 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (1958-1959) 449, at 452 and also 455 ('a special legal community, consisting of the parties to the agreement').
157. See also Paulsson, 'Arbitration Without Privity', in T.W. Wälde (ed.), The Energy Charter Treaty: An East-West Gateway for Investment and Trade (1996), at 422, 429,
158. and 441-442 and Broches, 'The Convention on the Settlement of Investment Disputes between States and Nationals of Other States', 136 Recueil des Cours (1972) 331, at 349
159. and also Spiermann,'Individual Rights, State Interests and the Power to Waive ICSID Jurisdiction under Bilateral Investment Treaties', 20 Arbitration International (2004) 179.
160. E.g., Mann, 'British Treaties for the Promotion and Protection of Investments', 52 BYIL (1981) 241, at 248-249,
161. Broches, 'Bilateral Investment Protection Treaties and Arbitration of Investment Disputes', in J.C. Schultsz and A.J. van den Berg (eds), The Art of Arbitration (1982), at 63, 68, and 72,
162. M. Sornarajah, The International Law on Foreign Investment (1994), at 266-267
163. and A.A. Asouzu, International Commercial Arbitration and African States (2001), at 346 and 359-360.
164. H.M. Holtzmann and J.E. Neuhaus, A Guide to the Uncitral Model Law on International Commercial Arbitration: Legislative History and Commentary (1990), at 782 and 806.
165. Ibid., at 787 and see also at 784, 797, and 798.
166. Ibid., at 780.
167. LaGrand Case [2001] ICJ Rep 466, at para. 77.
168. See also Spiermann, 'The LaGrand case and the Individual as a Subject of International Law', 58 Zeitschrift für öffentliches Recht (2003) 197.
169. See LaGrand Case, supra note 113, at paras 89 and 125 as well as paras 3, 4, and 7 of the dispositif.
170. See also Advisory Opinion OC-16/99, Right to Information on Consular Assistance in the Framework of the Guarantess of the Due Process of law IACHR Series A No. 16 (1999), at paras 80, 82-84, and 89-97.
171. LaGrand Case, supra note 113, at para. 78 and also para. 125.
172. As another example see Yaung Chi Oo Trading Pte. Ltd. v. Myanmar, 42 ILM (2003) 540, at para. 39.
173. Crawford, supra note 2, at 30, n. 132.
174. Case of the SS Wimbledon, PCIJ Series A No. 1 (1923), at 25.
175. Jurisdiction of the Courts of Danzig, PCIJ Series B No. 15 (1928), at 26-27.
176. J. Crawford, International Law as an Open System (2002), at 21.
177. See Barcelona Traction, Light and Power Company, Limited (Merits), [1970] ICJ Rep 3 at paras 33-34.
178. See Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Jurisdiction), 33 Feb. 2006, not yet reported, at para. 64.