Pub Date : 2020-11-12DOI: 10.1163/15718107-89030010
B. Pirker
The interaction between arguments developed under the different means of interpretation of the Vienna Convention on the Law of Treaties is often described in language evoking balancing. The present paper offers a linguistic perspective on this phenomenon. First, it aims to clarify in what situations balancing is actually taking place during an interpretive exercise. Then, it demonstrates how linguistic knowledge can sharpen our assessment in this context. It is shown with examples that help to establish the adequate weight of interpretative arguments developed under the means of interpretation of ordinary meaning. International law and its rules are not displaced in this exercise, but merely better understood by examining their operation through language.
{"title":"Balancing Interpretative Arguments in International Law – A Linguistic Appraisal","authors":"B. Pirker","doi":"10.1163/15718107-89030010","DOIUrl":"https://doi.org/10.1163/15718107-89030010","url":null,"abstract":"\u0000The interaction between arguments developed under the different means of interpretation of the Vienna Convention on the Law of Treaties is often described in language evoking balancing. The present paper offers a linguistic perspective on this phenomenon. First, it aims to clarify in what situations balancing is actually taking place during an interpretive exercise. Then, it demonstrates how linguistic knowledge can sharpen our assessment in this context. It is shown with examples that help to establish the adequate weight of interpretative arguments developed under the means of interpretation of ordinary meaning. International law and its rules are not displaced in this exercise, but merely better understood by examining their operation through language.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718107-89030010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45517185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030005
Daria Davitti
This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.
{"title":"Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?","authors":"Daria Davitti","doi":"10.1163/15718107-89030005","DOIUrl":"https://doi.org/10.1163/15718107-89030005","url":null,"abstract":"\u0000This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"89 1","pages":"343-363"},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44036203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030004
Eduardo Gill-Pedro
This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.
{"title":"Proportionality and the Human Rights of Companies Under the ECHR – Whose Interests are at Stake?","authors":"Eduardo Gill-Pedro","doi":"10.1163/15718107-89030004","DOIUrl":"https://doi.org/10.1163/15718107-89030004","url":null,"abstract":"\u0000This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"89 1","pages":"327-342"},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44401480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030002
Ségolène Barbou des Places
To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.
{"title":"Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning","authors":"Ségolène Barbou des Places","doi":"10.1163/15718107-89030002","DOIUrl":"https://doi.org/10.1163/15718107-89030002","url":null,"abstract":"\u0000To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"89 1","pages":"286-302"},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41956802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030008
A. Hofer
Comprehensive sanctions were considered to be disproportionate in their collateral effects for the harm caused to the populations of sanctioned States. With the emergence of the concept of targeted sanctions, questions regarding proportionality were expected to fade away. After all, targeted sanctions were supposed to be inherently proportional precisely because they were targeted. Nevertheless, the use of selective embargoes, also known as sectoral sanctions, continues to give rise to issues of proportionality. One of the lacunas of the current system is there is no uniform proportionality standard that applies to unilateral sanctions as these measures fall with different types of legal regimes, each with their own proportionality standard. Drawing from recent State practice and the existing legal standards, the present contribution maps the respective interests that should inform proportionality discussions in distinct sanctions regimes and explores to what extent the proportionality principle can account for each of these interests.
{"title":"The Proportionality of Unilateral “Targeted” Sanctions: Whose Interests Should Count?","authors":"A. Hofer","doi":"10.1163/15718107-89030008","DOIUrl":"https://doi.org/10.1163/15718107-89030008","url":null,"abstract":"\u0000Comprehensive sanctions were considered to be disproportionate in their collateral effects for the harm caused to the populations of sanctioned States. With the emergence of the concept of targeted sanctions, questions regarding proportionality were expected to fade away. After all, targeted sanctions were supposed to be inherently proportional precisely because they were targeted. Nevertheless, the use of selective embargoes, also known as sectoral sanctions, continues to give rise to issues of proportionality. One of the lacunas of the current system is there is no uniform proportionality standard that applies to unilateral sanctions as these measures fall with different types of legal regimes, each with their own proportionality standard. Drawing from recent State practice and the existing legal standards, the present contribution maps the respective interests that should inform proportionality discussions in distinct sanctions regimes and explores to what extent the proportionality principle can account for each of these interests.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43049684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030012
E. Brabandere, Paula Cruz
In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.
{"title":"The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective","authors":"E. Brabandere, Paula Cruz","doi":"10.1163/15718107-89030012","DOIUrl":"https://doi.org/10.1163/15718107-89030012","url":null,"abstract":"\u0000In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49151271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-12DOI: 10.1163/15718107-89030001
Eduardo Gill-Pedro, Ulf Linderfalk
{"title":"Proportionality in International Law: Whose Interests Count?","authors":"Eduardo Gill-Pedro, Ulf Linderfalk","doi":"10.1163/15718107-89030001","DOIUrl":"https://doi.org/10.1163/15718107-89030001","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"89 1","pages":"275-285"},"PeriodicalIF":0.0,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718107-89030001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42193348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-21DOI: 10.1163/15718107-bja10021
Marc Schack
When conflict arose between Iraq, Iraq’s US-led allies, and the terrorist group isil in 2014, legal scholars paid close attention. Amid the fighting these scholars tried to determine if the States getting involved, including Denmark and Norway, did so on the basis of a belief in the validity of the ‘Unable or Unwilling’-doctrine of self-defence. While some States were clear on this matter, Denmark and Norway both seemed ambiguous and hesitant – and were therefore habitually deemed sceptics of the doctrine. This article demonstrates, however, that this conclusion cannot be sustained. This insight is put forward, firstly, to correct a misleading narrative about the ‘Unable or Unwilling’-doctrine, and, secondly, to caution against relying on State practice and statements when doing so tells an uneven story and leads to disconnects between what States do and what they say – especially when there are palpable political reasons for States to resist clarity.
{"title":"Resisting Clarity: Scandinavian Ambiguity in the ‘Unable or Unwilling’-Debate","authors":"Marc Schack","doi":"10.1163/15718107-bja10021","DOIUrl":"https://doi.org/10.1163/15718107-bja10021","url":null,"abstract":"\u0000When conflict arose between Iraq, Iraq’s US-led allies, and the terrorist group isil in 2014, legal scholars paid close attention. Amid the fighting these scholars tried to determine if the States getting involved, including Denmark and Norway, did so on the basis of a belief in the validity of the ‘Unable or Unwilling’-doctrine of self-defence. While some States were clear on this matter, Denmark and Norway both seemed ambiguous and hesitant – and were therefore habitually deemed sceptics of the doctrine. This article demonstrates, however, that this conclusion cannot be sustained. This insight is put forward, firstly, to correct a misleading narrative about the ‘Unable or Unwilling’-doctrine, and, secondly, to caution against relying on State practice and statements when doing so tells an uneven story and leads to disconnects between what States do and what they say – especially when there are palpable political reasons for States to resist clarity.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"1 1","pages":"1-29"},"PeriodicalIF":0.0,"publicationDate":"2020-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718107-bja10021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42858450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-13DOI: 10.1163/15718107-bja10013
G. Pentassuglia
Large sectors of the Kurdish movement in Turkey have progressively come to discuss, develop and/or endorse models of so-called “democratic autonomy”. While there are several works in the field detailing and critiquing Turkey’s policies vis-à-vis the Kurds, the international legal dimension of the Kurdish democratic autonomy proposal in its own right has received far less attention to date. The present article seeks to fill this gap by reflecting upon the internal coherence and consistency of the democratic autonomy argument in light of international law standards and practice, with particular reference to internal self-determination in Turkey. I argue that any future settlement of the Kurdish question will require not only Turkey’s compliance with its own human rights obligations, but also the Kurdish movement’s ability to negotiate the accommodation of its aspirations in ways that are consistent with international human rights law.
{"title":"Assessing the Consistency of Kurdish Democratic Autonomy with International Human Rights Law","authors":"G. Pentassuglia","doi":"10.1163/15718107-bja10013","DOIUrl":"https://doi.org/10.1163/15718107-bja10013","url":null,"abstract":"Large sectors of the Kurdish movement in Turkey have progressively come to discuss, develop and/or endorse models of so-called “democratic autonomy”. While there are several works in the field detailing and critiquing Turkey’s policies vis-à-vis the Kurds, the international legal dimension of the Kurdish democratic autonomy proposal in its own right has received far less attention to date. The present article seeks to fill this gap by reflecting upon the internal coherence and consistency of the democratic autonomy argument in light of international law standards and practice, with particular reference to internal self-determination in Turkey. I argue that any future settlement of the Kurdish question will require not only Turkey’s compliance with its own human rights obligations, but also the Kurdish movement’s ability to negotiate the accommodation of its aspirations in ways that are consistent with international human rights law.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718107-bja10013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41786812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-13DOI: 10.1163/15718107-bja10007
D. Tladi
In the summer of 2019, the UN International Law Commission adopted a set of Draft Conclusions on Peremptory Norms of General International Law (jus cogens) on first reading. The Draft Conclusions cover various aspects relating to the methodology for the identification of peremptory norms and consequences of peremptory norms. The elaboration of the Draft Conclusions by the Commission provides an opportunity for the clarification of peremptory norms in order to take it out of the proverbial garage. Whether this potential is fulfilled will depend on a number of factors, including whether the Draft Conclusions are coherent, reflect practice, and address important practical considerations. The article suggests that, drawing on existing instruments, the Draft Conclusions formulate existing rules in more precise ways, and do so in a coherent manner.
{"title":"The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine","authors":"D. Tladi","doi":"10.1163/15718107-bja10007","DOIUrl":"https://doi.org/10.1163/15718107-bja10007","url":null,"abstract":"In the summer of 2019, the UN International Law Commission adopted a set of Draft Conclusions on Peremptory Norms of General International Law (jus cogens) on first reading. The Draft Conclusions cover various aspects relating to the methodology for the identification of peremptory norms and consequences of peremptory norms. The elaboration of the Draft Conclusions by the Commission provides an opportunity for the clarification of peremptory norms in order to take it out of the proverbial garage. Whether this potential is fulfilled will depend on a number of factors, including whether the Draft Conclusions are coherent, reflect practice, and address important practical considerations. The article suggests that, drawing on existing instruments, the Draft Conclusions formulate existing rules in more precise ways, and do so in a coherent manner.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"89 1","pages":"244-270"},"PeriodicalIF":0.0,"publicationDate":"2020-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/15718107-bja10007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44009462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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