Save

Cross-fertilisation in International Law

In: Nordic Journal of International Law
Author: Ulf Linderfalk1
View More View Less
  • 1 Lund University, Sweden
Full Access

This article picks up on a term (‘cross-fertilisation’) often exploited in debates on the interaction of international laws and legal practices, especially in the context of international criminal law. Two questions are addressed: (1) What is the meaning of ‘cross-fertilisation’? (2) What are its conditions? As the article argues, ‘cross-fertilisation’ pertains to the understanding of legal utterances relative to other such utterances. The concept assumes that if an agent wishes to understand the meaning or significance of a legal utterance, his understanding may profit by bringing the analysis of this utterance to bear on its assumed relationship with other legal utterances. Any assumption of a relationship between two legal utterances requires justification, however, or else it will not meet acceptance in international legal discourse. Consequently, when an agent brings the analysis of a legal utterance to bear on its relationship with some other legal utterance, as this article argues, cross-fertilisation will occur on two conditions. First, there has to be recognition of the relationship between the two utterances by a rule, principle, or informal convention pertinent to international legal discourse. Second, the agent must have grasped the precise nature of this same relationship. Based on this proposition, the article ends with six examples illustrating the kind of problems that might obstruct cross-fertilisation proper.

Abstract

This article picks up on a term (‘cross-fertilisation’) often exploited in debates on the interaction of international laws and legal practices, especially in the context of international criminal law. Two questions are addressed: (1) What is the meaning of ‘cross-fertilisation’? (2) What are its conditions? As the article argues, ‘cross-fertilisation’ pertains to the understanding of legal utterances relative to other such utterances. The concept assumes that if an agent wishes to understand the meaning or significance of a legal utterance, his understanding may profit by bringing the analysis of this utterance to bear on its assumed relationship with other legal utterances. Any assumption of a relationship between two legal utterances requires justification, however, or else it will not meet acceptance in international legal discourse. Consequently, when an agent brings the analysis of a legal utterance to bear on its relationship with some other legal utterance, as this article argues, cross-fertilisation will occur on two conditions. First, there has to be recognition of the relationship between the two utterances by a rule, principle, or informal convention pertinent to international legal discourse. Second, the agent must have grasped the precise nature of this same relationship. Based on this proposition, the article ends with six examples illustrating the kind of problems that might obstruct cross-fertilisation proper.

1 Introduction

The increasing diversification and rapid expansion of international law over the last ten to fifteen years have raised among international legal scholars a notable strong interest in the interaction of laws and legal practices. This trend has brought a new term to the international law glossary: ‘cross-fertilisation’. Examples illustrating the usage of this term are not hard to find. For Laurence Helfer, consequently, the “cross-fertilisation of legal norms is one of the interpretative tools that are commonplace in the case law of regional and sub-regional [human rights] courts”.1 Joost Pauwelyn describes the relationship between law and non-law as one of “cross-fertilisation” grounding this usage on the idea “that non-law may have a whole range of possible effects on what is law and how it should be interpreted and communicated”.2 Stephane Jaquemet uses the term ‘cross-fertilisation’ to describe the borrowing by international refugee law of international humanitarian law (ihl) concepts, principles and rules, “either at the standard-setting level or at the interpretation stage”.3 Chester Brown inquires into the “Cross-fertilization of Principles Relating to Procedures and Remedies in the Jurisprudence of International Courts and Tribunals”, emphasising the ensuing broad agreement among international judicial bodies on a range of issues.4

The concept of cross-fertilisation is key to the discussion taken up by Anne-Marie Slaughter on the role of national and international judiciaries in “an emerging global legal system”.5 As Philippe Sands suggests, ‘cross-fertilisation’ is a means to meet the challenges posed to international law “as ever more judicial and quasi-judicial bodies are faced with an increasing caseload requiring international law to be interpreted and applied in its general context”;6 he points particularly to the relevance in this context of Article 31, paragraph 3(c) of the 1969 Vienna Convention on the Law of Treaties.7 Thomas Buergenthal stresses the dependency of cross-fertilisation on the human factor; as he puts it, the fact that leading international law practitioners and judges serve on international administrative tribunals such as those of the United Nations, the International Labor Organization, or the World Bank and the International Monetary Fund “contributes to the cross-fertilisation of international jurisprudence and thus to the enrichment of international law in general”.8 Jonathan Charney observes in a similar vein that if “a significant amount of cross-fertilization occurs among international tribunals”, this is because not only tribunals, but also attorneys involved in international legal proceedings, are well aware of the views of other tribunals, and particularly those of the [International Court of Justice] icj”.9

Interestingly, as exhibited in many examples, the use of the term ‘cross-fertilisation’ remains somewhat diffuse in international legal literature. Many scholars resort to the term to represent the mere reference by one court to the jurisprudence of another. Others refer to cross-fertilisation as the result of the usage of some or other legal tool or technique. Others again seem to tie the meaning of ‘cross-fertilisation’ to the recognition and understanding by single international lawyers and judges of the jurisprudence of international tribunals generally. Considering the prominent place given to the concept of cross-fertilisation in the discussion of the interaction of international laws and legal practices, this observation emphasises the need for further research. What is especially needed is the development of a common conceptual framework. To ensure future constructive analysis and debate on the interaction of international law and legal practices, scholars would have to provide a sound answer to the following two questions:

  1. (1)What is the meaning of ‘cross-fertilisation’ when used for the purpose of a debate on the interaction of international laws and legal practices?
  2. (2)What are the conditions for cross-fertilisations in this same sense?

It is the purpose of this article to respond to this need. The article will suggest answers to Questions (1) and (2) alike. While obviously any answer to Question (2) presupposes the answer to Question (1), the two questions will be addressed in turn, in Sections 2-3 and Section 4, respectively.

2 The Meaning of ‘Cross-fertilisation’ in International Law

International law is, primarily at least, a set of legal norms. Legal norms are expressed and communicated in the form of norm sentences.10 In linguistics, a distinction is made between ‘sentence’ in the sense of something that can be uttered, whether orally or in writing, and ‘sentence’ in the sense of an abstract entity in the linguist’s model of the language system.11 Otherwise, when we confront a series of words inscribed on a piece of paper or uttered orally, we would not be able to say that the series is incomplete or that words have been put together incorrectly. Consider the following example: “Every treaties in force is binding upon the parties to it and must be performed by them at good faith”.12 Although in one of the two possible senses, this utterance may be said to express a sentence, as will be obvious to every reader or listener, it does so incorrectly.

Similarly, when in legal discussions we talk about a norm (or a norm sentence), we may use this term in two different senses.13 First, ‘norm’ may be used to stand for a string of words inscribed on a piece of paper or uttered orally. To avoid confusion, I will refer to this as a legal utterance. Legal utterances take many different forms, including treaty provisions, passages of judicial decisions, scholarly opinions, and official statements made by organs or representatives of states or international organisations. For the same reason, legal utterances may be the product of the language behaviour of utterers acting in different capacities, such as for example a government or national parliament, a representative accredited by a state to an international conference, a judiciary, a legal counsellor or attorney, a legal scholar, a body of experts, an international organisation, or a non-governmental organisation.

Secondly, ‘norm’ may be used to stand for a complete unit in a legal system. For the same reason as a person can be said to express a sentence incorrectly, we may say about the text of a legal utterance that although, possibly, it gives indication of the existence and scope of application of a legal norm, it does not give the norm full expression. An obvious example would be Article 109, paragraph 4 of the 1982 United Nations Convention on the Law of the Sea (unclos): “On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus”.

This provision does not provide the information we need to be able to state the full contents of the relevant norm.14 We need further information. At least, we need to inform ourselves of the contents of Article 109, paragraph 3 and Article 110. We need to be acquainted with the contents of Article 86 and Article 109, paragraph 2, which provide a definition of the concepts of the high seas and unauthorised broadcasting, respectively. We also need to know a few things about the scope of application of the relevant norm ratione personae: To whom does it apply? Who are the parties to the Convention?

As can be seen from the example, if a legal agent takes on the task of fully reconstructing a legal norm, aspiring to produce a norm sentence in the second sense of the term, this task may often require quite a lot of information. The agent has to state, first, the specific kind of conduct or state of affairs prescribed, prohibited, or permitted by the norm. Secondly, he or she has to state every single condition, of which the prescription, prohibition, or permission is dependent, including to whom it applies. To procure all this information, the legal agent is typically forced to take into account not only one legal utterance but several, such as for instance the text of several articles in a treaty, or the text of a treaty provision and a judicial decision delivered for the purpose of the resolution of a dispute concerning the interpretation of the text relative to some particular case or state of affairs. That is to say, if a legal agent wishes to understand the meaning or significance of a legal utterance (U1), his understanding may profit by bringing the analysis of U1 to bear on its relationship with other legal utterances (U2, U3, U4, and so on). To talk about cross-fertilisation in international law implies confirmation of this observation.15

In a sense, the idea of cross-fertilisation in international law presupposes that the international legal system works very much like a language system. As observed by linguistics, the meaning of terms is dependent on their relationship with other terms belonging to the same language system.16 Obviously, the meaning of ‘football’ (in the sense of the ball object) is dependent on its relationship with the concept of the game known as ‘football’; the meaning of ‘kick’ is dependent on its relationship with ‘foot’; the meaning of ‘arm’ is dependent on its relationship with ‘finger’, ‘shoulder’, and ‘body’; and so on. Not every term, however, is equally dependent for its meaning on a relation with every other term belonging to the same system.17 Whereas, for example, the meaning of ‘kick’ is dependent on the existence of a relationship between ‘kick’ and ‘foot’, it is not in any similar way dependent on the existence of a relationship between this same term and ‘sky’. Consequently, as observed by linguistics, every proposition about the existence of a relationship between two terms implies the existence of some sort of general explanation.18 How can we explain, for example, that ‘kick’ is more closely related to ‘foot’ than ‘sky’? Depending on the particular senses of those words, it may be replied that ‘foot’ is what people use when they ‘kick’, or more generally, that there is always a relationship between a word representing bodily activity and words representing a body part engaged.

This observation helps clarify the meaning inherent in the term ‘cross-fertilisation’, when used for the purpose of a debate on the interaction of international laws and legal practices. Any talk of cross-fertilisation in international law implies the existence of reasons that can explain why some legal utterances are more closely related than others. Stated in the context of a concrete case of understanding, when a particular agent (nn) brings the analysis of a legal utterance U1 to bear on its assumed relationship with some other legal utterance U2, nn should be able to refer to some reason that can explain this assumption. To be able to discuss the conditions for cross-fertilisation in international law, we need to understand the nature and origin of such reasons. Section 3 will address this issue in more detail.

3 Establishing Relationships between Legal Utterances

3.1 The Relevant Institutional Framework for Understanding Legal Utterances

For the explanation of any legal proposition, it is important to understand the nature of the conducted investigation.19 Depending on whether the investigation is conducted in a context of discovery or a context of justification, the explanation will be fundamentally different.20 It is one thing, for example, to explain why international criminal tribunals repeatedly draw upon the practice of the European Court of Human Rights for their understanding of international criminal law. It is quite another to justify such approaches. In the former case, investigators may conclude that typically judges at international criminal tribunals are already very well-acquainted with the practice of the European Court, or that judges have a clear universalist inclination. In the latter case, such explanations will simply not do. When a legal proposition is investigated in a context of justification, the validity of any attempt to explain it will inevitably depend on the relevant institutional framework. More specifically, it will depend on the system of rules, principles, and informal conventions that define international legal discourse.

Section 4 of this essay will inquire into the conditions for cross-fertilisation in international law. As indicated in section 2, ‘cross-fertilisation’ pertains to the understanding of legal utterances. The essay assumes, that under some certain conditions, if a legal agent wishes to understand the meaning or significance of a legal utterance (U1), his understanding will profit by bringing the analysis of U1 to bear on its relationship with other legal utterances (U2, U3, U4, and so on). The purpose of section 4 is to explain those conditions in more detail. The investigation will be conducted in a context of justification, and not in a context of discovery. As will be taken for granted, the understanding of legal utterances is an activity subject to the constraints of a particular institutional framework. This framework strives to qualify the concept of a profitable understanding. When a particular agent (nn) brings the analysis of a legal utterance U1 to bear on its assumed relationship with some other legal utterance U2, not only is it a requirement that nn should be able to refer to some reason that justify this assumption. The reason referred to should also derive from the application of a rule, principle or informal convention pertinent to international legal discourse, or else the understanding by nn of U1will not profit.21 Subsections 3.2–3.6 will identify some of the more important of those rules, principles and conventions.

3.2 Conflict Rules and Other Rules of Relationship

As a kind of response to the steady expansion of international law, international law-makers find it increasingly useful to clarify the interrelationship of legal rules creating other rules of law for that purpose. To generally capture this phenomenon of rules of international law that clarify the interrelationship of yet other rules belonging to the international legal system, this essay will use the term ‘rules of relationship’. Rules of relationship include priority clauses such as for example Article 311 of the unclos: “This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958”.

They include conflict rules such as lex superior derogat legi inferiori, lex specialis derogat legi generali, and lex posterior derogate legi priori:

In a case of conflict between a rule of jus cogens and a rule of ordinary international law, the former shall have priority.22

In a case of conflict between two rules of ordinary international law, the more special shall have priority over the more general.23

In a case of conflict between two rules of ordinary international law, the later shall have priority over the earlier.24

They include also rules that establish the relationship between different rules of law more generally, such as for example Article 92 of the Charter of the United Nations or Article 5 of Protocol No. 13 to the European Convention on the Protection of Human Rights and Fundamental Freedoms (echr), respectively:

The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

As between States Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention.

If it is established that two rules of law (R1 and R2) come within the scope of application of a rule of relationship, then this will provide sufficient reason for concluding that a relationship exists between any two utterances that convey information about R1 and R2, respectively. For example, if an utterance (U1) describes a right exercised by a coastal state over continental shelf resources according to unclos, then because of Article 311 of this Convention, obviously we would be excused for finding a relationship between U1 and any other utterance describing a right exercised by a coastal state on the basis of the 1958 Geneva Convention on the Continental Shelf. If an utterance (U2) describes the right of a person not be subject to inhuman or degrading treatment or punishment laid down in Article 3 of the echr, then because of Article 5 of Protocol 13 to the Convention, we would be excused for finding a relationship between U2 and an utterance describing a right laid down in this Protocol. Similarly, if an utterance (U3) describes the prohibition of war crimes laid down in customary international law, then because of the lex superior rule, given that the prohibition of war crimes is part of jus cogens, we would be excused for finding that there is relationship between U3 and any other utterance describing a rule of ordinary international law.

3.3 Rules of Treaty Interpretation

If a rule of international law presupposes the interpretation of a treaty (T) based on some particular kind of data (D), the application of this rule may provide a reason for concluding that a relationship exists between any two utterances that convey information about T and D, respectively. In Öcalan v. Turkey,25 for example, the European Court of Human Rights inquired whether the imposition and/or execution of the death penalty constituted an “inhuman and degrading” punishment in violation of Article 3 of the echr. The Court investigated the meaning of Article 3 relative to among other things the penal policies of the member states of the Council of Europe, and the policy of the Council itself, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation.26 Justification of the assumed relationship between Article 3 of the echr and the penal policy of the Council of Europe and its member states can be found in Article 31 of the 1969 Vienna Convention on the Law of Treaties (vclt). More specifically, according to paragraph 3(b), for the purpose of the interpretation of a treaty, “[t]here shall be taken into account … [a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

In Oil Platforms,27 the International Court of Justice considered the interpretation of Article xx, paragraph 1(d) of the 1955 Treaty of Friendship, Commerce and Navigation between Iran and the United States, which reads as follows:

The present treaty shall not preclude the application of measures … necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.28

The Court interpreted the provision relative to “the principle of the prohibition in international law on the use of force, and the qualification to it constituted by the right of self-defence”,29 as expressed in among other international instruments the Charter of the United Nations.30 Justification of the assumed relationship between Article xx and the principle of the non-use of force can be found in Article 31, paragraph 3(c) of the vclt, which emphasises the relevance of “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

In Thiel v. Federal Commission of Taxation,31 several judges of the High Court of Australia interpreted a tax treaty concluded between Australia and Switzerland in 1980 relative to the 1977 oecd Model Double Taxation Conventions on Income and on Capital (oecd Model) and its Commentaries. Judge Dawson commented that in his opinion, the relevance of the oecd Model and Commentaries resided in the fact they once served as a basis for the conclusion of the tax treaty between Australia and Switzerland.32 Justification of the assumed relationship between the tax treaty and the 1977 oecd Model and Commentaries can be found in Article 32 of the vclt. According to Article 32, recourse may be had to the circumstances of the conclusion of a treaty. This includes any non-binding instrument from which the drafters of the treaty once took inspiration.33

In Müller and Others v. Switzerland,34 the European Court of Human Rights considered among other things whether the freedom of artistic expression came within the ambit of Article 10 of the echr. The Court interpreted Article 10 relative to Article 19 of the 1966 International Covenant on Civil and Political Rights (iccpr), which specifically includes within the right of freedom of expression information and ideas “in the form of art”. Justification of the assumed relationship between Article 10 of the echr and Article 19 of the iccpr can be found once again in Article 32 of the vclt, while “supplementary means of interpretation” are generally considered to include treaties in pari materia.35

3.4 Inductive Reasoning

As illustrated by the following four examples, if it is established that a legal utterance (U1) expresses a general principle or concept inferred from other legal utterances (U2, U3, U4, and so on), then this finding may provide a reason for concluding that a relationship exists between U1 and any of those other utterances.

In Nicaragua (Jurisdiction and Admissibility),36 the International Court of Justice considered the effect of the notification deposited by the us Government on 6 April 1984. The notification insisted that, henceforth, the United States’ unilateral declaration of 1946, accepting the compulsory jurisdiction of the Court, “shall not apply to disputes with any Central American State or arising out of or related to events in Central America”.37 As the Court held, the creation and performance of an obligation under Article 36 of the Statute of the Court is governed by the principle of good faith, much like any treaty obligation.38 The law of treaties, the Court noted, “requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity”.39 Consequently, if states retain the right to terminate unilateral declarations with unlimited duration, no exercise of this right will have effect immediately, but only after “a reasonable period of notice”.40

A prohibition on the abuse of rights is expressed in treaties such as the unclos, the echr, and the 1994 General Agreement on Tariffs and Trade.41 Its importance for the application of international law generally has been stressed repeatedly by international judiciaries.42 Analysing the significance of the abuse of rights doctrine, scholars have emphasised its relationship with Article 18 of the vclt, as they are assumedly both manifestations of the principle of good faith.43 According to Article 18 of the vclt, if a state has expressed its consent to be bound by a treaty, pending its entry into force, it is obliged to refrain from any acts that would defeat the object and purpose of the treaty. In parallel to this obligation, so goes the argument, the abuse of rights doctrine prevents a state from exercising rights in a manner that would render their objects and purposes ineffective.44

In Kasymakhunov and Saybatalov v. Russia,45 the European Court of Human Rights considered the criminal proceedings initiated on 25 March 2004 against the two applicants in Russian courts for aiding and abetting terrorism, and founding a criminal organisation called Hizb ut-Tahrir al-Islami. The applicants complained of violations of Article 7 of the echr. Reiterating the significance of this Article, the Court emphasised its dependency on the concept of the rule of law: “The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection … “.46 This dependency constituted for the Court a reason for construing Article 7 relative to its findings in earlier cases to the extent that those had also pertained to the concept of the rule of law.47

Rules of jus cogens form a superior category of international law. Consequently, in the case of a conflict between a treaty and a rule of jus cogens, the treaty shall be void; in the case of a conflict between a reservation to a treaty and a rule of jus cogens, the reservation shall be void; in the case of conflict between a rule of jus cogens and a rule of ordinary international law, the former shall have priority; and so on and so forth.48 Scholars have referred to rules such as those just reiterated as “second order rules of the jus cogens regime”.49 The scope of application of those second order rules remains much debated, however. Commenting upon their significance, in some cases, lawyers take inspiration from the idea that jus cogens forms an element in an “international constitution”.50 Such ideas provide reasons for understanding any second order rule of the jus cogens regime relative to national constitutions, which in turn might explains why according to some lawyers, second order rules apply to a very wide range of human rights.51

3.5 Referring Expressions That Take Their Meaning Largely from the Context of Utterance

In situations of verbal communication including the uttering of more than just a few words, when phrasing utterances, utterers often have the possibility of exploiting the context so as to avoid unnecessary repetition.52 To give a straightforward example, take a scholar engaged in studies of diplomatic law. He may have expressed already: “Sending states have the possibility of waiving the immunity from jurisdiction of a diplomatic agent or a member of his family, or a member of the administrative and technical staff of a diplomatic mission”.

He may now also wish to convey the proposition that waiver must be express. This proposition can be conveyed in two different ways. In the first alternative, the utterer may choose to repeat the right of waiver as he originally described it, adding the qualification that waiver must be express: “Any waiver of immunity from jurisdiction of a diplomatic agent or a member of his family, or a member of the administrative and technical staff of a diplomatic mission, must be express”.

In the second alternative, the utterer may use a shorthand referring expression, such as for example a pronoun, which because of the availability of the earlier utterance allows the reader to easily identify the referent without once again giving it full description: “Any such waiver must be express”.

In legal utterances, international lawyers use a great variety of shorthand referring expressions operating in very much the same way as “such” in the example. Expressions of this kind are very popular, not only because they are a way of avoiding unnecessary repetition and voluble expression. When used especially for the purpose of legal description, they may also help ensure the flexibility of law. The point is, of course, that if it is established that a legal utterance (U1) uses a referring expression that takes its meaning largely from the discursive context, then this will provide a reason for concluding that a relationship exists between U1 and any other utterance that either itself belong to this context, or convey information about it.

Examples are not very hard to find. The earlier section 2 pointed to the wording of Article 109, paragraph 4 of unclos to illustrate the concept of a norm in the sense of a complete unit in a legal system: “On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus”.

This provision makes reference explicitly to Article 109, paragraph 3 and Article 110. Implicitly, it makes reference to Article 86 and Article 109, paragraph 2, which define the concepts of the high seas and unauthorised broadcasting, respectively. That is to say, Article 109, paragraph 4 takes part of its meaning from other provisions of the same treaty.

Of course, in much the same way, an utterance may refer back to other parts of international law, either explicitly or implicitly. In Šimšić v. Bosnia and Herzegovina,53 for example, the applicant complained to the European Court of Human Rights about his conviction in 2007 for crimes against humanity with regard to acts perpetrated in 1992. In assessing the admissibility of the complaint, the Court considered it in the light of Article 7, paragraph 1 of the echr:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.54

It noted that although the impugned acts had not constituted a crime against humanity under domestic law until 2003, because they constituted “an offence defined with sufficient accessibility and foreseeability by international law”, including the Statutes of the International Criminal Court for the Former Yugoslavia (icty) and International Criminal Court, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, the conviction of the applicant fell clearly outside of the scope of Article 7.55

In Aegean Sea Continental Shelf,56 the International Court of Justice inquired into the meaning of the reservation made by Greece in 1931 when it acceded to the 1928 General Act for the Pacific Settlement of International Disputes. The reservation excluded from the procedures described in the General Act “disputes relating to the territorial status of Greece”. Inquiring into the meaning of this expression, the Court would seem to have taken for granted that it took its meaning largely from international law. As it readily accepted, “the expression … is to be understood as a generic term denoting any matters properly to be considered as comprised within the concept of territorial status under general international law”.57

Just as an utterance may refer back to international law, it may contain reference to domestic law,58 or to institutional practices other than law. Article 10 of the echr, for example, recognises that the exercise of the right to freedom of expression “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of health or morals”.59 In the application of this provision, the European Court has consistently understood the expression “morals” relative to the moral standards applied in the member states of the Council of Europe,60 although most of the times it has found a “uniform European conception of morals” to be lacking.61 A similar strategy of understanding was adopted by the Court in several cases concerning possible violations of Article 5, paragraph 1(e) of the echr,62 which uses the expression “persons of unsound mind”. The way the Court understands this expression, obviously, it takes part of its meaning from “research in psychiatry”.63

Similarly, in Gabčíkovo-Nagymaros Project,64 the International Court of Justice considered several provisions of the 1972 Treaty between Hungary and Czechoslovakia Concerning the Construction and Operation of the Gabčíkovo-Nagymaros System of Locks,65 among them Article 15, paragraph 1: “The Contracting Parties shall ensure, by the means specified in the joint contractual plan, that the quality of the water in the Danube is not impaired as a result of the construction and operation of the System of Locks’’.66 The Court briefly examined the meaning of this provision when assessing the lawfulness of Hungary’s notification of termination of the 1972 Treaty and its argument that new developments in the state of environmental knowledge and of environmental law constituted a fundamental change of circumstances in the sense of Article 62 of the vclt.67 As it noted, Article 15 “made it possible for the parties to take account of such developments and to apply them” when implementing treaty obligations.68 This proposition would seem to take for granted that the expression “the quality of the water in the Danube” takes its meaning partly from environmental knowledge.

3.6 Language Interaction

According to what sociolinguistics teaches, language use is socially constrained.69 As a result, when a socially defined group of people speak a common language such as English, interaction between group members may often lead to the development of language patterns that are partly different from the patterns that exist among English speaking people in general.70 Obvious examples include terminologies developed by professional practices (e.g., neurobiology, odontology, archeology, literature, carpeting, or printing) and communities of interest such as for example runners, footballers, genealogists, back-packers, poker players, and mountaineers. When referring to any such convention applied internally within a socially defined group of people, sociolinguistics speak about varieties of a language.71

Language varieties are not closed self-supporting units. Just like standard languages (e.g., English, French, Swedish), they interact and influence each other.72 The most obvious way of interaction between varieties of a language is the exchange or borrowing of terminology. Borrowing is a rather frequent occurrence in international legal discourse. Participants in international legal discourse import vocabulary from non-legal discourses. For example, international lawyers may talk about ‘cross-fertilisation’ of legal norms or practices,73 using a term which was originally associated with biology and botanics. Participants in international legal discourse import vocabulary from domestic legal discourses. For example, international lawyers may talk about jus cogens or international obligations erga omnes,74 or again obligations laid down in the Charter of the United Nations,75 as international ‘constitutional law’. Lawyers concerned with one special regime of international law import vocabulary developed by lawyers concerned with other special regimes. For example, in a discourse on human rights obligations of companies, participants may talk about obligations of ‘due diligence’,76 which is originally a term used in other spheres of international regulation, such as the law on the protection of foreign nationals.77 Similarly, different socially defined groups of international lawyers borrow vocabulary from each other. For example, in a discourse involving only practicing international lawyers and international diplomats, participants may talk about ‘regionalism’,78 which is originally a term used by academics.

The borrowing of terms among different language varieties in international legal discourse assumes the existence of some informal convention. This convention suggests that although a term may be foreign to the social context where it is uttered, the meaning originally conferred on that term shall be a factor in the interpretation of the utterance. This is so, if for no other reason, then because otherwise, many utterances would remain largely incomprehensible.79 Consequently, if it is established that a legal utterance U1 borrows variety specific terminology, then this may provide a reason for concluding that a relationship exists between U1 and any other utterances using this term (U2, U3, U4, and so on), although they may be largely foreign to the socially defined context where U1 occurs.

4 Conditions for Cross-fertilisation

4.1 Research Approach

The understanding by an agent of any legal utterance presupposes a context. When an agent brings the analysis of a legal utterance (U1) to bear on its relationship with some other legal utterance (U2), as this essay argues, the necessary context includes an assumption about the precise nature of this relationship. Take any two terms of the English language, as for example ‘axe’ and ‘wood chopping’. Obviously, there is a relationship between those two terms: axes are used for wood chopping. Any observation of this relationship can easily be wrongly interpreted to exclude the possibility that ‘axe’ may be similarly related to other terms, too. Certainly, ‘wood chopping’ helps explaining ‘axe’, because axes are used for wood chopping, but this does not imply that axes cannot be used for other purposes, too, as for example hitting a nail. Understanding the true nature of the relationship between ‘axe’ and ‘wood chopping’ prevents such misunderstandings. In the example, ‘wood chopping’ helps understanding ‘axe’, not because axes are used solely for wood chopping, or because wood can be chopped only by means of an axe, but because axes are tools that can be used for wood chopping.

This observation helps explain the conditions for cross-fertilisation in international law. When an agent (nn) brings the analysis of a legal utterance (U1) to bear on its relationship with some other legal utterance (U2), not only must the relationship between U1 and U2 be recognised by a rule, principle, or informal convention pertinent to international legal discourse, but nn must also have grasped the precise nature of this relationship.

In the final analysis, as it appears, the conditions for cross-fertilisation in international law can only be stated on a case-by-case basis, relative to the two utterances involved, and relative to each particular agent of understanding. This inevitably makes any general analysis of the issue problematic. Consequently, if this essay aims to explain the conditions for cross-fertilisation in international law, it will have to limit itself to providing a few concrete examples illustrating the issue. This is the approach chosen for the present section 4. Hopefully, section 4 will still help to improve understanding of the kinds of problems that might obstruct cross-fertilisation proper.

4.2 Öcalan Case

In Öcalan v. Turkey,80 the Grand Chamber of the European Court of Human Rights reexamined the argument considered in Soering,81 sixteen years earlier, that the imposition and/or execution of the death penalty constituted an inhuman and degrading punishment in violation of Article 3 of the echr. The Court found this interpretation to be inconceivable in the absence of an agreement of the parties to the Convention to abrogate the exception for capital punishment provided for under Article 2, paragraph 1:

… if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 …82

Citing the previous decision of the Chamber on this point, the Court reiterated:

… that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.83

As it observed:

… the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organization.84

The Court further noted:

… that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it …85

The Court found that, in the final analysis, it was not necessary to reach any firm conclusion on the soundness of the interpretation of Article 3 proposed by the applicant.86 From the point of view of the cross-fertilisation of international law, this is unfortunate because the situation raises some very interesting questions about the precise nature of the relationship between Articles 1–4 of Protocol No. 13 and the Articles of the echr. According to Article 5 of Protocol No. 13, “[a]s between States Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention”. The provision begs the questions: In what sense are Articles 1–4 of the Protocol additional to the Convention? Are they additional in the logical sense, so that no right following from the Protocol shall be considered to already follow from the Convention? Put in terms of the concrete case, does the adoption of Protocol No. 13 exclude the possibility that parties to the echr, through their respective penal policies, may have developed already an informal agreement to abrogate the exception for capital punishment provided for under Article 2 of the Convention?

4.3 Aegean Sea Continental Shelf Case

In Aegean Sea Continental Shelf,87 as earlier indicated, Greece and Turkey argued different interpretations of the reservation made by the Greek government in 1931 when it acceded to the 1928 General Act for the Pacific Settlement of International Disputes. The reservation excluded “disputes relating to the territorial status of Greece” from the procedures described in the General Act. As the International Court of Justice assumed, this expression took its meaning largely from international law. Consequently, it was to be understood “as a generic term denoting any matters properly to be considered as comprised within the concept of territorial status under general international law”.88 Questions still remained about the precise nature of this relationship between the reservation and international law. The Court faced two options. In the one alternative, the existence of the intended referent of the expression “the territorial status of Greece” had been tied to the point of utterance, why the expression was to be interpreted in the light of the particular rules of international law that applied in 1931. In the other alternative, the intended referent was outside time altogether, why the expression should be understood to take its meaning from the international law applied at any time of interpretation, irrespective of how that law developed.

The interpretation of the Applicant suggested the former alternative. As the Greeks tried to convince the Court, since in 1931 the concept of the continental shelf was completely unknown to international law, no dispute involving Greece concerning the delimitation of continental shelf in the Aegean Sea could ever come within the extension of the expression “disputes relating to the territorial status of Greece”.89 The Court itself found reasons to be sceptical about this line of argument, considering especially the close meaning relationship between the reservation and the 1928 Act. As it explained, first, the 1928 Act was a convention designed to be of continuing duration: “… it hardly seems conceivable that in such a convention terms like ‘domestic jurisdiction’ and ‘territorial status’ were intended to have a fixed content regardless of the subsequent evolution of international law”.90

Secondly, according to Article 17 of the 1928 Act – which Greece suggested formed a basis for the jurisdiction of the Court – parties agreed to submit to judicial settlement concerning all disputes to which they “are in conflict as to their respective rights”:

Yet the rights that are the subject of the claims upon which Greece requests the Court in the Application to exercise its jurisdiction under Article 17 are the very rights over the continental shelf of which, as Greece insists, the authors of the General Act could have had no idea whatever in 1928. If the Greek Government is correct, as it undoubtedly is, in assuming that the meaning of the generic term ‘rights’ in Article 17 follows the evolution of the law, so as to be capable of embracing rights over the continental shelf, it is not clear why the similar term ‘territorial status’ should not likewise be liable to evolve in meaning in accordance with ‘the development of international relations’. 91

4.4 The Case of Crown Forest Industries

In Crown Forest Industries,92 the Supreme Court of Canada considered the decision of Canadian tax authorities to withhold a certain percentage of tax on the rental of barges by a Canadian company (Crown Forest Industries Ltd.). Barges were rented from a Bahamian corporation, named Norsk, whose sole office and place of business was located in the United States. At issue was whether Norsk was to be considered a “resident of a Contracting State” in the sense of Article iv of the 1980 Convention between Canada and the United States of America with respect to Taxes on Income and on Capital. Article iv, paragraph 1 reads:

For the purposes of this Convention, the term ‘resident of a Contracting State’ means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation or any other criterion of a similar nature.

To illuminate the meaning of this provision, the Court referred to Article 4, paragraph 1 of the oecd Model Double Taxation Convention on Income and Capital adopted in 1977. The relationship between Article 4, paragraph 1 of the oecd Model and Article 4, paragraph 1 of the 1980 Convention would seem to be recognised by a rule of interpretation laid down in the vclt. As the Court confirmed, the oecd Model “served as the basis for the Canada-United Sates Income Tax Convention (1980)”,93 which brought the oecd Model under the scope of application of Article 32 of the vclt. The precise nature of this relationship remained to be clarified, however, while the further outcome of interpretation showed to be dependent upon it. The Court noted the difference between the oecd Model and the 1980 Convention.94 Article 4, paragraph 1 of the oecd Model consisted of two sentences. The first sentence was perfectly identical with Article iv, paragraph 1 of the 1980 Convention. The second sentence, interestingly, defined the concept of a ‘resident of a Contacting State’ for purposes of the Model; as it explicitly stated, “this term does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein”. The 1980 Convention contained no similar clarification. The Court inferred that “the second sentence of the oecd Model Convention Article 4 was omitted from Article iv of the Canada-United States Income Tax Convention (1980) because it simply was not required in the context of the Canadian and u.s. taxation systems”.95 There are no doubt other possible ways of looking at the relationship. For example, it could be argued that the second sentence was omitted because the drafters wished to indicate that when the tax liability of a person was limited to source income only, he or she could still qualify as a resident under the 1980 Convention.

4.5 Delalić Case

In the case of Prosecutor v. Delalić and others,96 the icty examined whether and under what conditions rape could be characterised as torture in the sense of the Statute of the Tribunal. Torture is a grave breach of the 1949 Geneva Conventions, and as such punishable under Article 2(b) of the icty Statute. Moreover, it is a violation of the laws and customs of war punishable under Article 3 of that same Statute. It should be recalled that rape and other forms of sexual assault are already expressly prohibited by other rules of international humanitarian law, such as Article 27 of the Fourth 1949 Geneva Convention, Articles 76 of Additional Protocol I to the 1949 Geneva Conventions and Article 46 of the 1907 Hague Convention (iv).

The Trial Chamber conducted its examination following a two-step procedure. First, it affirmed the relevance of Article 1 of the 1984 Convention against Torture,97 which it found reflected the definition of torture under customary international law.98 Article 1, paragraph 1 reads:

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Secondly, the Trial Chamber inquired whether, generally speaking, rape could ever fit this definition. It quoted for this purpose the findings of the European Court of Human Rights in the Case of Aydin v. Turkey.99 As the Chamber interpreted the European Court, “on the basis of the facts before it”, in this case the Court “specifically affirmed the view that rape involves the infliction of suffering at a requisite level of severity to place it in the category of torture”.100 The Chamber concluded that depending on the particular circumstances of a case, rape and other forms of sexual violence could certainly constitute torture in the sense of the icty Statute.101

As shown from this description, for the purpose of its investigation of the meaning of Article 2(b) and Article 3 of the icty Statute, the Trial Chamber regarded torture in the particular sense of those two provisions as a reflection of the general concept of torture assumed in customary international law. It inferred this general concept from Article 1 of the 1984 Torture Convention, and from the jurisprudence relating to the understanding of rape by the European Court of Human Rights in the context of Article 3 of the echr. This approach implies the existence of a relationship between, on the one hand, the general concept of torture assumed by the Torture Convention and the jurisprudence of the European Court, and on the other hand, the particular concept of torture assumed by the icty Statute. What is the nature of this relationship precisely? Quite clearly, the particular concept of torture assumed by the icty Statute is not fully congruous with the extension of the general concept. As concerns the requirement of the general definition of torture laid down in customary international law, the Trial Chamber readily admitted that some adaptation was needed to suit the particular context of ihl:

In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international armed conflicts involving some non-State entities.102

Recalling this relative plasticity of the general concept, why should it so obviously be assumed that insofar as concerns rape, the particular concept of torture assumed in the icty Statute is completely identical with the general concept of torture assumed by the European Court? Some further justification seems wanting.

4.6 The Case of the Timor Gap Treaty

In 1989, Indonesia concluded a bilateral treaty with Australia (the Timor Gap Treaty) “to enable the exploration for and exploitation of the petroleum resources of the continental shelf of the area between the Indonesian Province of East Timor and northern Australia”.103 Indonesia since many years illegally occupied the non-self-governing territory of East Timor.104 As inhabitants of a non-self governing territory, the East Timorese people enjoyed a right to self-determination, including among other things the right to freely dispose of its natural resources. This right follows from customary international law, reflected in, among other international instruments, common Article 1 of the two Covenants concluded in 1966 on Economic, Social and Cultural Rights, and Civil and Political Rights, respectively.105 Moreover, the right of self-determination is generally recognised as peremptory international law (jus cogens).106

Many commentators would seem to share the assessment that the Timor Gap Treaty was always invalid,107 since by applying the Timor Gap Treaty, Australia and Indonesia would necessarily violate their respective obligations owed under the right of self-determination to the international community as a whole.108 Such an assumption suggests the existence of a relationship between the Timor Gap Treaty and any utterance conveying information about the right of self-determination. This relationship is recognised by Article 53 of the vclt: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”. The precise nature of this relationship is not readily apparent, however. Insofar as a ‘conflict’ is defined in the traditional sense of a logical relation between two obligations, which are both owed by a particular legal subject (A) to another particular legal subject (B),109 then in fact there would seem to be no conflict at all between the Timor Gap Treaty and the right of self-determination. Whereas under the Timor Gap Treaty obligations are owed bilaterally, obligations owed under the right of self-determination are owed to the international community as a whole. The concept of a conflict assumed by Article 53, and by scholars commenting on the effects of the 1989 Timor Gap Treaty, remains to be clarified.

4.7 The Issue of a Possible Right of Anticipatory Self-defence

In international law textbooks, a requirement of necessity is usually said to apply in the assessment of the legality of a forcible measure taken by a state to prevent an armed attack from occurring.110 As confirmed by the Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001, this requirement was originally borrowed from the law of state responsibility.111 In the context of the Caroline incident, for example, the necessity of forcible action was said to constitute a valid circumstance precluding its wrongfulness under international law. When the us protested against the seizure and destruction of the Caroline by British armed forces acting on American territory, consequently, it requested the British Government to show the existence of a necessity of self-defense “instant, overwhelming, leaving no choice of means, and no moment for deliberation”.112 Does this same formula correctly describe the conditions for the application of a right of anticipatory self-defense? The history of ‘necessity’ is certainly reason to be cautious, not just for the mere fact that more than 170 years have passed since the Caroline incident. It would also seem counter-intuitive to assume that a term such as ‘necessity’ can be imported from a vocabulary tied to the understanding of one area of regulation, and then applied in the context of a completely different such area with no notable effects on its meaning.

5 Conclusion

As stated in section 1, if international scholars think it is important to have a constructive debate on issues of “cross-fertilisation” in international law, it might be a good idea to start by establishing a common conceptual framework. Two questions demand to be answered in particular. First, what is the meaning of ‘cross-fertilisation’ when used in the context of a debate on the interaction of international laws and legal practices? And, secondly, what are the conditions for cross-fertilisations? The analysis conducted in this essay should be seen as a step towards providing those two questions with an answer. The conclusions are as follows:

  1. 1)‘Cross-fertilisation’ pertains to the understanding of legal utterances relative to other such utterances. The concept assumes that if a legal agent wishes to understand the meaning or significance of a legal utterance, his understanding may profit by bringing the analysis of this utterance to bear on its relationship with other legal utterances. This is to say, legal utterances are dependent for their meaning or significance on their relationship with each other. Since not every utterance is equally dependent for its meaning or significance on every other legal utterance, issues of justification are bound to arise. Whenever a particular agent (nn) brings the analysis of a legal utterance U1 to bear on its assumed relationship with some other legal utterance U2, this relationship has to be explained.
  2. 2)In international legal discourse, the understanding of legal utterances is subject to particular constraints. Those constraints work to qualify the concept of a profitable understanding. Consequently, if a particular agent (nn) assumes the existence of a relationship between two legal utterances, U1 and U2, justification of this assumption would have to derive from the application of a rule, principle or informal convention pertinent to international legal discourse; or else the understanding by nn of any of those utterances will not profit. This observation emphasises the importance in international legal discourse of such things as: rules of relationship; rules of treaty interpretation; principles of inductive reasoning; the convention of interpreting referring expressions in the light of their discursive context; and, similarly, the convention requiring the interpretation of variety specific terms in the light of their original meaning.
  3. 3)Any understanding of a legal utterance presupposes a context. When an agent brings the analysis of a legal utterance (U1) to bear on its relationship with some other legal utterance (U2), the necessary context includes an assumption about the precise nature of this relationship. This observation helps explain the conditions for cross-fertilisation in international law, recalling that an assumed relationship between two legal utterances must always be recognised by a rule, principle, or informal convention pertinent to international legal discourse. As illustrated in section 4, cross-fertilisation may be obstructed by things like: the vague or ambiguous language of rules of relationship (Öcalan; the case of the Timor Gap Treaty); the difficulty of determining the referring intentions of utterers using a referring expression (Aegean Sea Continental Shelf); the nature of a rule of interpretation conferring a discretion on interpreters (Crown Forest Industries); and the context-dependency of concepts and principles (Delalić) and the meaning of terms (the issue of a possible right of anticipatory self-defense).

1 L. Helfer, ‘The Successes and Challenges for the European Court, Seen from the Outside’, 14 May 2014, <http://www.ejiltalk.org/the-successes-and-challenges-for-the-european-court-seen-from-the-outside>, visited on 1 March 2015.

2 J. Pauwelyn, ‘Is it International Law or Not, and Does It Even Matter?’, in J. Pauwelyn et al. (eds.), Informal International Lawmaking (oup, Oxford, 2012) 125, p. 153.

3 S. Jaquemet, ‘The Cross-Fertilization of International Humanitarian Law and International Refugee Law’, 83 International Review of the Red Cross (2001) p. 652.

4 C. Brown, ‘The Cross-Fertilization of Principles Relating to Procedure and Remedies in the Jurisprudence of International Courts and Tribunals’, 30 Loyola of Los Angeles International and Comparative Law Review (2008) p. 244.

5 A. Slaugther, ‘Judicial Globalization’, 40 Virginia Journal of International Law (2000) p. 1103.

6 P. Sands, ‘Sustainable Development: Treaty, Custom, and the Cross-Fertilization of International Law’, in A. Boyle and D. Freestone (eds.), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, New York, 1999), <http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198298076.001.0001/acprof-9780198298076-chapter-3>, visited 1 March 2015.

7 Ibid.

8 T. Buergenthal, ‘Proliferation of International Courts and Tribunals: Is It Good or Bad?’, 14 Leiden Journal of International Law (2001) p. 269.

9 J. Charney, ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals’, 31 International Law and Politics (1999) p. 705.

10 See e.g., K. Larenz, Methodenlehre der Rechtswissenschaft, 6th edition (Springer, Berlin, 1991) p. 250.

11 See e.g., J. Lyons, Linguistics (Cambridge University Press, Cambridge 1977) pp. 28–29.

12 Cf. Article 26 of the 1969 Vienna Convention on the Law of Treaties, 1155 unts 331.

13 For some legal philosophers a legal norms amounts to no more and no less than a norm sentence in this second sense. Cf. A. Peczenik, On Law and Reason (Kluwer, Dordrecht, 1989) pp. 270–272.

14 I used this same example in an earlier article, discussing then the effects of jus cogens norms. See U. Linderfalk, ‘The Effect of Jus Cogens Norms: Whoever Opened the Pandora’s Box, Did You Ever Think About the Consequences?’, 18 European Journal of International Law (2007) p. 858. For further examples, see ibid.

15 There is a clear positive ring to the term cross-fertilisation. According to English dictionaries, fertilise means to make fertile; enrich; to make productive. Any talk of cross-fertilisation in international law implies that if a legal agent brings the analysis of a legal utterance (U1) to bear on its relation with some other legal utterance (U2), his understanding of U1 will profit by this.

16 Cf. Lyons, supra note 11, chapters 8–9.

17 Ibid.

18 Ibid.

19 See e.g., K. Popper, The Logic of Scientific Discovery (Hutchinson, London, 1959), pp. 31–32. Please note that this is the English translation of a work that first appeared in German, in 1934.

20 Ibid.

21 This definition would seem to encapsulate at least two fundamentally different conceptions of ‘cross-fertilisation’ represented in the literature. On the one hand, it shares with authorities such as Judge Buergenthal and Professor Charney the idea of a dependency of ‘cross-fertilisation on human understanding. On the other hand, similar to authorities such as Professor Sands, it recognises the role of norms of legal argumentation.

22 Cf. Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012, icj Reports 2012, pp. 99, 140, para. 92.

23 Cf. Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, 13 July 2009, icj Reports 2009, p. 213.

24 Ibid.

25 Öcalan v. Turkey, 12 May 2005, European Court of Human Rights (ecthr) no. 46221/99.

26 Öcalan, ibid., para. 163.

27 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 November 2003, icj Reports 2003, p. 161.

28 unts, Vol. 284, p. 93.

29 Oil Platforms, supra note 27, p. 183, para. 43.

30 Ibid., p. 183, para. 42.

31 Thiel v. Federal Commissioner of Taxation, Judgment, 22 August 1990, 171 clr 338.

32 Ibid., paras. 9–11.

33 See e.g., European Communities – Measures Affecting the Importation of Certain Poultry Products, wt/ds69/ab/r, Report of the wto Appellate Body, 13 July 1998, para. 83.

34 Müller and Others v. Switzerland, 24 May 1988, ecthr no. 10737/84.

35 See U. Linderfalk, On the Interpretation of Treaties (Springer, Dordrecht, 2007), pp. 255–259.

36 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment (Jurisdiction of the Court and Admissibility of the Application), 26 November 1984, icj Reports 1984, p. 392.

37 Ibid., p. 398, para. 13.

38 Ibid., p. 418, para. 60.

39 Ibid., p. 420, para. 63.

40 Ibid.

41 See respectively Articles 300, 17, and xx.

42 See e.g., United States – Import of Certain Shrimp and Shrimp Products, wt/ds58/ab/r, ‘Report of the Appellate Body’, 12 October 1998, para. 116; Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela, arb/00/5, Decision on Jurisdiction, 27 September 2001; Tokios Tokelės v. Ukraine, arb/02/18, Decision on Jurisdiction, 29 April 2004; Phoenix Action Ltd v. The Czech Republic, arb/06/5, Award, 15 April 2009.

43 See e.g. O. Dörr, ‘Article 18’, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties. A Commentary (Springer, Heidelberg, 2012) 219, p. 220.

44 See e.g., A. Kiss, ‘Abuse of Rights’, in R. Wolfrum (ed.), 1 The Max Planck Encyclopedia of Public International Law (oup, Oxford, 2012) 20, p. 22.

45 Kasymakhunov and Saybatalov v. Russia, 14 June 2013, ecthr nos 26261/05 and 26377/06.

46 Ibid., para. 76.

47 For detailed references, see ibid., paras. 76–78.

48 See U. Linderfalk, ‘The Source of Jus Cogens Obligations: How Legal Positivism Copes with Peremptory International Law’, 82 Nordic Journal of International Law (2013) pp. 374–375.

49 Ibid., p. 375.

50 See e.g., J. Delbrück, ‘Laws in the Public Interest: Some Observations on the Foundations and Identification of erga omnes Norms in International Law’, in V. Götz et al. (eds.), Liber Amoricum Günther Jaenicke – Zum 85. Geburtstag (Springer, Berlin, 1998) p. 35.

51 O. De Schutter, International Human Rights Law. Cases, Materials, Commentary (Cambridge University Press, Cambridge, 2010) p. 87 et seq.

52 See e.g., S. Levinson, Pragmatics (Cambridge University Press, Cambridge, 1983) p. 62 et seq.

53 Šimšić v. Bosnia and Herzegovina, 10 April 2012, ecthr no. 51552/10.

54 Emphasis added.

55 Šimšić, supra note 53, para. 25.

56 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, 19 December 1978, icj Reports 1978, p. 3.

57 Ibid., pp. 31–32, para. 76.

58 For example, in using the term ‘Canadian fishery regulations’, a bilateral fishing agreement may refer explicitly to Canadian law. Similarly, a bilateral investment treaty, in using the term ‘nationals’, may refer implicitly to domestic nationality law.

59 Emphasis added.

60 See e.g., Handyside v. The United Kingdom, 7 December 1976, ecthr no. 5493/72, para. 48; Gough v. The United Kingdom, 28 October 2014, ecthr no. 49327/11, paras. 160, 166; Müller and Others, supra note 34, para. 35.

61 Handyside, supra note 60, para. 48.

62 See e.g. Winterwerp v. The Netherlands, 24 October 1979, ecthr no. 6301/73, para. 37; Anatoliy v. Ukraine, 17 April 2014, ecthr no. 50264/08, para. 102; Glien v. Germany, 28 November 2013, ecthr no. 7345/12, para. 72; Shulepova v. Russia, 11 December 2008, ecthr no. 34449/03, para. 40.

63 Winterwerp, supra note 62, para. 37.

64 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, icj Reports 1997, p. 7.

65 unts, Vol. 1109, p. 236.

66 Emphasis added.

67 Gabčíkovo-Nagymaros Project, supra note 64, pp. 64–65, para. 104.

68 Ibid., p. 65, para. 104.

69 See e.g., J. Holmes, An Introduction to Sociolinguistics, 3rd edition (Pearson Longman, Harlow, 2008).

70 Ibid., pp. 7–8.

71 Ibid.

72 Ibid.

73 See supra notes 1–9.

74 See e.g., Delbrück, supra note 50, p. 35.

75 See e.g., B. Fassbender, The United Nations Charter as a Constitution of the International Community (Nijhoff, Leiden, 2009).

76 See e.g., Guiding Principles on Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 21 March 2011, un Doc. A/hrc/17/31, particularly Principle 17.

77 See e.g., R. Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’, 35 German Yearbook of International Law (1992) 9.

78 Cf. O. Memedovic et al. (eds.), Multilateralism and Regionalism in the Post-Uruguay Round Era (Kluwer Academic Publishers, Boston, 1999).

79 To illustrate, take any of the examples just provided.

80 Öcalan, supra note 25.

81 Soering v. The United Kingdom, 7 July 1989, ecthr no. 14038/88.

82 Öcalan, supra note 25, para 162.

83 Ibid., para 163.

84 Ibid.

85 Ibid., para 164.

86 As the Court concluded, the trial of Öcalan would in any case be unfair, in the sense of Article 6 of the Convention; and the implementation of a death sentence following an unfair trial itself amounted to an inhuman treatment in violation of Article 3. See ibid., paras. 165–175.

87 Aegean Sea Continental Shelf, supra note 56.

88 Ibid., pp. 31–32, para. 76.

89 Ibid., p. 33 para. 77.

90 Ibid.

91 Ibid., p. 34 para. 78.

92 Crown Forest Industries Ltd. v. Canada, 22 June 1995, [1995] 2 s.c.r. 802.

93 Ibid., para. 55.

94 Ibid., para. 56.

95 Ibid., para. 59.

96 Prosecutor v. Delalić and others, Judgement, Trial Chamber, 16 November 1998.

97 un Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, unts, Vol. 1465, p. 85.

98 Delalić, supra note 96, p. 167, para. 459.

99 Aydin v. Turkey, 25 September 1997, ecthr no. 23178/94. See ibid., p. 176, para. 488.

100 Delalić, supra note 96, p. 176, paras. 488–489.

101 Ibid., p. 179, para. 496.

102 Ibid., p. 171, para. 473.

103 Preambular para. 2.

104 See e.g., unsc res 384 (1975) and 389 (1976).

105 unts, Vol. 999, p. 3 and p. 171, respectively.

106 See e.g. the Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, Report of the International Law Commission on the Work of its 53rdSession, 23 April–1 June and 2 July–10 August 2001, un Doc. a/56/10, pp. 20, 85 (Draft Article 26).

107 See e.g., L. Hannikainen, ‘The Case of East Timor from the Perspective of Jus cogens’, in International

Law and the Question of East Timor (1995) 103.

108 According to what scholars generally assume, jus cogens rules necessarily express obligations erga omnes – obligations owed to the international community as a whole. See e.g., S. Kadelbach, ‘Jus Cogens, Obligations Erga Omnes and other Rules: The Identification of Fundamental Norms’, in C. Tomuschat and J. Thouvenin (eds.), The Fundamental Rules of International Legal Order (Nijhoff, Leiden, 2006) 21–40, p. 25; M. Byers, ‘Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules’, 66 Nordic Journal of International Law (1997), 211.

109 See e.g., Indonesia – Certain Measures Affecting the Automobile Industry, wt/ds54/r, wt/ds55/r, wt/ds59/r, wt/ds64/r, 2 July 1998, ‘Report of the Panel’, para. 14.28, fn. 649.

110 See e.g., M. Dixon, Textbook on International Law, 6th edition (Oxford University Press, Oxford, 2007) p. 315.

111 ilc Commentaries 2001, supra note 106, p. 81 (Draft Article 25).

112 See British and Foreign State Papers, 1840–1841 (Ridgway, London, 1857) Vol. 29, p. 1129, as quoted by the ilc Commentaries 2001, supra note 106.

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 702 265 36
Full Text Views 307 38 3
PDF Views & Downloads 156 93 8