Proceedings of the Annual Meeting (American Society of International Law), 2014
because they can advance or undermine tribunal or ICC effectiveness through providing or withhold... more because they can advance or undermine tribunal or ICC effectiveness through providing or withholding much-needed cooperation in the pursuit and prosecution of suspects. Therefore, for the chief prosecutor, skillfully marketing the case that the tribunal or ICC is indeed effective and worthy of international investment constitutes an important route toward attaining concrete external support needed to actually make these legal institutions effective. Part of a chief prosecutor’s marketing strategy includes shifting the blame for institutional ineffectiveness to those political actors undermining the fight against impunity. Examples of such a strategy are drawn from the chief prosecutors’ high-profile speeches to the Security Council. In a number of these speeches, the chief prosecutors attempt to shame both defiant states and the Security Council itself, whose passivity enables war crimes suspects to remain fugitives. The apparent aim of casting blame in this forum goes beyond shifting responsibility for institutional ineffectiveness. A larger purpose for the chief prosecutors is to galvanize political actors to fulfill their legal responsibility to provide cooperation and thus ensure these institutions’ effectiveness. The campaign to market the contributions of the ad hoc tribunals and the ICC is often undertaken in a highly contentious environment. In this environment, targeted states whose leaders are under investigation or indictment do not remain passive. On the contrary, targeted state leaders, as in Sudan and Kenya, seek to knock the ICC off its moral pedestal and diminish the Court’s good work. These targeted states do so by trying to shame the ICC and the ad hoc tribunals in the court of international public opinion. By doing so, these states demonstrate that international tribunals do not hold a monopoly on the strategy of shaming. For targeted states, a common line of attack is to allege tribunal or ICC failure and even betrayal of their mission to deliver justice impartially. We see this line of attack repeatedly leveled at the ICC Chief Prosecutor by President al-Bashir of Sudan, President Kenyatta of Kenya, and their African Union allies. More specifically, these African leaders have sought to undermine the ICC’s moral authority by alleging that the Court is a politicized body driven by anti-African bias. This has real consequences for the ICC’s already uphill battle to persuade regional and international actors for concrete support with arrests, witness protection, and other forms of state cooperation crucial for institutional effectiveness. The outcome of the ICC’s ongoing rhetorical battles with these African states will go a long way in determining whether the cases against the Sudanese and Kenyan presidents ever come to trial. Moreover, the outcome of these high-profile cases will in turn have a great bearing on the ICCs effectiveness—both in its courtrooms in The Hague and in the court of regional and international public opinion.
of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislat... more of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislation adopted by such regimes. However, it remains unclear whether these patterns also coalesce into legal principles that can sufficiently guide future practice, eg in case the Crimea—illegally annexed by the Russian Federation—ever returns to Ukraine. Nonetheless, Yaël Ronen should not be blamed for that. Ultimately, transitions from illegal regimes are so fraught by political sensitivities that the integrity of the law inevitably takes a back seat.
Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on ... more Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on the 1920 Svalbard Treaty. Thus, any challenges or attempts to undermine Norwegian sovereignty should be taken seriously. Torbjørn Pedersen discusses in his article ‘The Politics of Research Presence in Svalbard’ in this issue to what extent some of the foreign scientific research on Svalbard should be seen as national posturing, threatening Norwegian sovereignty. However, it is important to distinguish between intentions and effects of any national posturing. As Pedersen notes, the relevant activities must be interpreted: are they based on scientific or other relevant needs, or are meant to challenge Norwegian sovereign right to regulate activities on Svalbard. Only the latter forms of activities should be subject to concern. Secondly, the different measures taken by other states should be individually assessed. For example, the name of a research station would hardly in itself be a challenge, whereas the Chinese request for an international decision-making process in the adoption of a research strategy for NyÅlesund may give reason to worry. Thirdly, a distinction should be made between internal national communications and external international demands. Only the latter has the ability to be interpreted as a challenge. Finally, there is reason to emphasise that no state has an interest in an unregulated power struggle. Instead, they have a common interest in acknowledging Norway as a regulatory Hobbesian Leviathan, securing a common peaceful order. I will not discuss the policy aspects further, but – like Erik Molenaar – concentrate on the legal aspects, i.e. the interpretation of the Svalbard Treaty. Molenaar submits that article 5(2) of the Svalbard Treaty contains three ‘implicit assumptions or understandings:
International courts and tribunals (ICs) are increasing in number and importance. They address an... more International courts and tribunals (ICs) are increasing in number and importance. They address an expanding variety of issues, ranging from the law of the sea to international criminal law. The ICs are typically of a compulsory character, be it de jure or de facto: states may in practice have little choice whether to accept their jurisdiction if they want to benefit from the relevant regime. They no longer only address disputes among states; several of them are open to non-state actors. And they have functions beyond dispute settlement: they develop or make law, make specialized regimes work through their interpretations, and contribute to compliance with international obligations. In short: international relations are increasingly judicialized. The present book maps and assesses this development-and reactions thereto, because the trends have met with mixed responses.
This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Euro... more This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.
... See also John Cerone, The Military Commissions Act of 2006: Examining the Relationship betwee... more ... See also John Cerone, The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Con-flict and ... 16 Concluding observations of 6 December 2001 (CCPR/CO/73; CCPR/CO/73/UKOT) 17 Concluding observations of 10 December ...
International constitutionalism comes in many different forms. A distinction may be made between ... more International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.
Treaties will generally set out the substantive rights and obligations of the treaty parties. But... more Treaties will generally set out the substantive rights and obligations of the treaty parties. But treaties are also used to establish institutions for international cooperation. Such institutions may take many forms such as formal international organizations (IOs) or international courts. But treaties may also set up organs that are neither IOs nor international courts in the traditional sense. This paper deals with such ‘treaty bodies’.
The internationalization of law adds new issues to the classical topic of how and when judicial r... more The internationalization of law adds new issues to the classical topic of how and when judicial review may be legitimate. We discuss review of national law on the basis of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR) and by the Norwegian Supreme Court. We are concerned both with the possible democratic legitimacy of such review, and other grounds for legitimacy. We finally point to some implications of this internationalization of law for public perceptions of the judges' functions in society and for their independence-and some implications for the Norwegian selection of judges to the Supreme Court and the ECtHR.
British Yearbook of International Law, Apr 8, 2023
While a significant number of states have deposited declarations under article 36(2) of the Sta... more While a significant number of states have deposited declarations under article 36(2) of the Statute of the International Court of Justice recognizing the ICJ’s compulsory jurisdiction over their disputes, the United Kingdom is the only permanent member of the UN Security Council that maintains such a declaration. However, the UK’s recent reservations undermine its declaration’s ability to ensure compulsory jurisdiction over the UK’s disputes. This article first interrogates whether the UK’s reservations exclude in practice the jurisdiction of the Court, such that none of the permanent members of the Security Council are subject to compulsory jurisdiction under the optional clause. Second, it contemplates the reasons underlying the UK’s new approach to its declaration, exploring whether these are peculiar to the UK, or are rather indicative of a broader backlash against international courts and tribunals.
Proceedings of the Annual Meeting (American Society of International Law), 2014
because they can advance or undermine tribunal or ICC effectiveness through providing or withhold... more because they can advance or undermine tribunal or ICC effectiveness through providing or withholding much-needed cooperation in the pursuit and prosecution of suspects. Therefore, for the chief prosecutor, skillfully marketing the case that the tribunal or ICC is indeed effective and worthy of international investment constitutes an important route toward attaining concrete external support needed to actually make these legal institutions effective. Part of a chief prosecutor’s marketing strategy includes shifting the blame for institutional ineffectiveness to those political actors undermining the fight against impunity. Examples of such a strategy are drawn from the chief prosecutors’ high-profile speeches to the Security Council. In a number of these speeches, the chief prosecutors attempt to shame both defiant states and the Security Council itself, whose passivity enables war crimes suspects to remain fugitives. The apparent aim of casting blame in this forum goes beyond shifting responsibility for institutional ineffectiveness. A larger purpose for the chief prosecutors is to galvanize political actors to fulfill their legal responsibility to provide cooperation and thus ensure these institutions’ effectiveness. The campaign to market the contributions of the ad hoc tribunals and the ICC is often undertaken in a highly contentious environment. In this environment, targeted states whose leaders are under investigation or indictment do not remain passive. On the contrary, targeted state leaders, as in Sudan and Kenya, seek to knock the ICC off its moral pedestal and diminish the Court’s good work. These targeted states do so by trying to shame the ICC and the ad hoc tribunals in the court of international public opinion. By doing so, these states demonstrate that international tribunals do not hold a monopoly on the strategy of shaming. For targeted states, a common line of attack is to allege tribunal or ICC failure and even betrayal of their mission to deliver justice impartially. We see this line of attack repeatedly leveled at the ICC Chief Prosecutor by President al-Bashir of Sudan, President Kenyatta of Kenya, and their African Union allies. More specifically, these African leaders have sought to undermine the ICC’s moral authority by alleging that the Court is a politicized body driven by anti-African bias. This has real consequences for the ICC’s already uphill battle to persuade regional and international actors for concrete support with arrests, witness protection, and other forms of state cooperation crucial for institutional effectiveness. The outcome of the ICC’s ongoing rhetorical battles with these African states will go a long way in determining whether the cases against the Sudanese and Kenyan presidents ever come to trial. Moreover, the outcome of these high-profile cases will in turn have a great bearing on the ICCs effectiveness—both in its courtrooms in The Hague and in the court of regional and international public opinion.
of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislat... more of treaties concluded by the illegal regimes and the wide-ranging validation of domestic legislation adopted by such regimes. However, it remains unclear whether these patterns also coalesce into legal principles that can sufficiently guide future practice, eg in case the Crimea—illegally annexed by the Russian Federation—ever returns to Ukraine. Nonetheless, Yaël Ronen should not be blamed for that. Ultimately, transitions from illegal regimes are so fraught by political sensitivities that the integrity of the law inevitably takes a back seat.
Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on ... more Norway has been very clear about its determination to uphold sovereignty over Svalbard, based on the 1920 Svalbard Treaty. Thus, any challenges or attempts to undermine Norwegian sovereignty should be taken seriously. Torbjørn Pedersen discusses in his article ‘The Politics of Research Presence in Svalbard’ in this issue to what extent some of the foreign scientific research on Svalbard should be seen as national posturing, threatening Norwegian sovereignty. However, it is important to distinguish between intentions and effects of any national posturing. As Pedersen notes, the relevant activities must be interpreted: are they based on scientific or other relevant needs, or are meant to challenge Norwegian sovereign right to regulate activities on Svalbard. Only the latter forms of activities should be subject to concern. Secondly, the different measures taken by other states should be individually assessed. For example, the name of a research station would hardly in itself be a challenge, whereas the Chinese request for an international decision-making process in the adoption of a research strategy for NyÅlesund may give reason to worry. Thirdly, a distinction should be made between internal national communications and external international demands. Only the latter has the ability to be interpreted as a challenge. Finally, there is reason to emphasise that no state has an interest in an unregulated power struggle. Instead, they have a common interest in acknowledging Norway as a regulatory Hobbesian Leviathan, securing a common peaceful order. I will not discuss the policy aspects further, but – like Erik Molenaar – concentrate on the legal aspects, i.e. the interpretation of the Svalbard Treaty. Molenaar submits that article 5(2) of the Svalbard Treaty contains three ‘implicit assumptions or understandings:
International courts and tribunals (ICs) are increasing in number and importance. They address an... more International courts and tribunals (ICs) are increasing in number and importance. They address an expanding variety of issues, ranging from the law of the sea to international criminal law. The ICs are typically of a compulsory character, be it de jure or de facto: states may in practice have little choice whether to accept their jurisdiction if they want to benefit from the relevant regime. They no longer only address disputes among states; several of them are open to non-state actors. And they have functions beyond dispute settlement: they develop or make law, make specialized regimes work through their interpretations, and contribute to compliance with international obligations. In short: international relations are increasingly judicialized. The present book maps and assesses this development-and reactions thereto, because the trends have met with mixed responses.
This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Euro... more This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.
... See also John Cerone, The Military Commissions Act of 2006: Examining the Relationship betwee... more ... See also John Cerone, The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Con-flict and ... 16 Concluding observations of 6 December 2001 (CCPR/CO/73; CCPR/CO/73/UKOT) 17 Concluding observations of 10 December ...
International constitutionalism comes in many different forms. A distinction may be made between ... more International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.
Treaties will generally set out the substantive rights and obligations of the treaty parties. But... more Treaties will generally set out the substantive rights and obligations of the treaty parties. But treaties are also used to establish institutions for international cooperation. Such institutions may take many forms such as formal international organizations (IOs) or international courts. But treaties may also set up organs that are neither IOs nor international courts in the traditional sense. This paper deals with such ‘treaty bodies’.
The internationalization of law adds new issues to the classical topic of how and when judicial r... more The internationalization of law adds new issues to the classical topic of how and when judicial review may be legitimate. We discuss review of national law on the basis of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR) and by the Norwegian Supreme Court. We are concerned both with the possible democratic legitimacy of such review, and other grounds for legitimacy. We finally point to some implications of this internationalization of law for public perceptions of the judges' functions in society and for their independence-and some implications for the Norwegian selection of judges to the Supreme Court and the ECtHR.
British Yearbook of International Law, Apr 8, 2023
While a significant number of states have deposited declarations under article 36(2) of the Sta... more While a significant number of states have deposited declarations under article 36(2) of the Statute of the International Court of Justice recognizing the ICJ’s compulsory jurisdiction over their disputes, the United Kingdom is the only permanent member of the UN Security Council that maintains such a declaration. However, the UK’s recent reservations undermine its declaration’s ability to ensure compulsory jurisdiction over the UK’s disputes. This article first interrogates whether the UK’s reservations exclude in practice the jurisdiction of the Court, such that none of the permanent members of the Security Council are subject to compulsory jurisdiction under the optional clause. Second, it contemplates the reasons underlying the UK’s new approach to its declaration, exploring whether these are peculiar to the UK, or are rather indicative of a broader backlash against international courts and tribunals.
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