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The Law and Practice of Facultative Mixity
Despite the Lisbon Treaty reforming the EU Treaty provisions on external relations, it was argued at the time of the Treaty’s entry into force that ‘mixity was here to stay’. While this has indeed proven to be the case, the Court of Justice’s jurisprudence has nonetheless redrawn the contours within which mixity can thrive and for the first time has confirmed the existence of ‘facultative mixity’. In light of these significant post-Lisbon developments the volume aims to clarify the law and policy of facultative mixed agreements in the EU’s treaty practice and this not only from the perspective of EU (constitutional) law itself but also from the perspective of the EU Member States’ legal systems, that of the EU’s third country treaty partners and that of public international law itself.
Access, Uses, and Protection of Seabed Resources
Editor: Catherine Banet
The Law of the Seabed reviews the most pressing legal questions raised by the use and protection of natural resources on and underneath the world’s seabeds.
While barely accessible, the seabed plays a major role in the Earth’s ecological balance. It is both a medium and a resource, and is central to the blue economy. New uses and new knowledge about seabed ecosystems, and the risks of disputes due to competing interests, urge reflection on which regulatory approaches to pursue.
The regulation of ocean activities is essentially sector-based, and the book puts in parallel the international and national regimes for seabed mining, oil and gas, energy generation, bottom fisheries, marine genetic resources, carbon sequestration and maritime security operations, both within and beyond the national jurisdiction.
The book contains seven parts respectively addressing the definition of the seabed from a multidisciplinary perspective, the principles of jurisdiction delimitation under the United Nations Convention on the Law of the Sea (UNCLOS), the regimes for use of non-living, living and marine biodiversity resources, the role of state and non-state actors, the laying and removal of installations, the principles for sustainable and equitable use (common heritage of mankind, precaution, benefit sharing), and management tools to ensure coexistence between activities as well as the protection of the marine environment.

In this concluding section, I first restate that a corollary of States’ international legal obligations is that they must use the interpretative methods required by international law, including when States interpret these obligations via their courts. They must do so regardless of their domestic (and especially their constitutional) legal specificities. Moreover, predictable, clear, and consistent reasoning is key if these methods are to be respected. While not every case raises difficult interpretative issues, and while judges face various constraints in their activity, these are not compelling justifications for leaving things unchanged. I offer several recommendations on how to improve the Swiss case law and the practice of domestic courts in general. First, the legality and the quality of domestic rulings need to be improved. Second, given the status of domestic rulings in the sources of international law and as auxiliary means, the accessibility of domestic rulings needs to be enhanced.

In: Domestic Courts and the Interpretation of International Law
In: Domestic Courts and the Interpretation of International Law

In this chapter, I provide an overview of existing scholarship dealing with the interpretation of international law by domestic courts in Switzerland and other jurisdictions. A new study that analyzes and seeks to guide the practice, and that complements scholarly efforts to date, is needed for at least five reasons. First, scholarly work on domestic courts and international law primarily focuses on mapping the existing practice, rather than on the normative (legal and/or moral) principles that must or should guide it. Moreover, legal theorists and philosophers tend to neglect international law. Third, the place of domestic judicial decisions in the sources of international law is ambiguous. Fourth, scholars and courts often neglect that the fact that States must respect the interpretative methods of international law is a corollary of their international legal obligations. Finally, a comprehensive overview and evaluation of Swiss courts’ practice pertaining to international law is missing.

In: Domestic Courts and the Interpretation of International Law

This chapter is devoted to the specific methods governing the interpretation of international law, and to the reasons for using these methods in particular. I claim that States, to honor their international obligations, must use the interpretative methods of international law, namely textual, systematic, teleological, and historical interpretation. Contrary to what is often assumed, the interpretative methods of domestic and international law share the same traits. Differences between them are due to some features of domestic vs. international lawmaking. To identify the interpretative methods of international law, I use domestic law and legal theory, the Vienna Convention on the Law of Treaties, and the International Law Commission’s Draft Conclusions on the Identification of Customary International Law. One important claim that I make in this chapter – and which challenges mainstream scholarship – is that the aforementioned four methods govern the interpretation of treaties, but also the interpretation of custom and general principles.

In: Domestic Courts and the Interpretation of International Law

In this chapter, I highlight some characteristics of the Swiss legal order that deserve emphasis for the purposes of my study. A first cluster of features pertains to the relationship between the State and international law. I then highlight a series of principles of political organization that govern Switzerland. Third, I focus on the structure, organization, and functioning of the Swiss judiciary. One methodological choice I defend in this chapter is my decision to focus on a specific institutional and domestic legal context, and on how courts in this State have decided specific cases. Indeed, refraining from looking at a particular domestic judiciary and on individual cases would make it difficult to provide a thorough, reasonably comprehensive, and nuanced account of the challenges and constraints that domestic courts face. Importantly, such an approach would neglect that international law is designed to be implemented in domestic legal orders.

In: Domestic Courts and the Interpretation of International Law

In the introduction, I set out the overarching goal and argument of the study. I explain why the claim that courts must interpret international law in accordance with what the law requires, as well as predictably, clearly, and consistently, is not a truism and is not taken seriously enough in international legal scholarship. This claim aims to contribute to the improvement of the practice, which often runs afoul of these requirements. I then define the scope of the study, outline its three-pronged structure (based on Joseph Raz’s three questions: what is interpretation, why interpret, and how to interpret), as well as the eight chapters that compose it. I also provide some methodological clarifications. Finally, I elaborate on the two criteria (legality and quality) that I use to evaluate the practice of domestic courts in the area of international law.

In: Domestic Courts and the Interpretation of International Law

In this chapter, I examine the legal effect of domestic rulings in international law. I argue that this effect has both static and dynamic elements. On the one hand, and this is what I refer to as the static effect, domestic courts enable States to respect their international obligations. On the other hand, from the angle of the sources of international law, domestic judicial decisions also have what I call a dynamic effect on international law. First, and as becomes apparent when analyzing art. 38(1)(a)–(c) of the Statute of the International Court of Justice (icj), domestic rulings can collectively contribute to the formation and modification of international law. Second, from the vantage point of any domestic or international interpreter of international law, domestic judicial decisions are what I refer to as auxiliary means (or ‘subsidiary means’, pursuant to art. 38(1)(d) icj Statute) that assist her in her interpretative task.

In: Domestic Courts and the Interpretation of International Law

International law requires States to use specific methods to interpret their international legal obligations, including via their courts, and there are good reasons for imposing such a requirement on them. These reasons are primarily connected to the importance of lawful interpretation, but they can also be linked to the virtues of predictable, clear, and consistent legal reasoning. In this chapter, I first compare judicial interpretation to interpretation in other domains. In a second step, I briefly retrace the history of interpretative methods in domestic and international law, and I discuss the relationship between domestic and international methods. I then provide three arguments for having mandatory interpretative methods in domestic and international law: the frequent vagueness of laws, the well-known ‘counter-majoritarian difficulty’ created by judicial review, and courts’ tremendous interpretative power. Finally, I examine and respond to three classic objections that have been raised against interpretative methods.

In: Domestic Courts and the Interpretation of International Law