I

We begin with the concept of cliché itself. In the introduction to a dictionary of clichés that is now in its fifth edition, Eric Partridge writes that a cliché is ‘an outworn commonplace; a phrase or short sentence that has become so hackneyed that careful speakers and scrupulous writers shrink from it because they feel that its use is an insult to the intelligence of their audience or public’.³ This definition highlights a number of features. In the first place, there is the hackneyed character of the cliché. Clichés are banal, trite, ho-hum. Secondly, the concept of cliché brings with it the idea of loss or degeneration.⁴ A cliché is an outworn commonplace, in the sense that it originally had a point but repetition has now blunted that point and effaced the meaning and intensity which the cliché once had. And thirdly, cliché is a pejorative term. To apply the label is to condemn that to which it is applied as boring, predictable, inane, jejune and/or specious – an insult to the collective intelligence.

Partridge’s concern is the verbal cliché – the phrase or short sentence – but, at any rate today, the concept of cliché plainly extends much further than that. Thus, for instance, we speak of musical clichés, architectural clichés, theatrical clichés and culinary clichés. We take cliché to apply not only to language, but also to the aural, visual and other sensory domains, as well as to the realm of gestures and actions. Underlying all this is an idea of cliché as a particular mode of thought – a markedly unreflective mode of thought, indeed a mode of non-thought, a kind of automatism. For Walter Redfern, the central characteristic of cliché is ‘dependence’ in this sense.⁵ When you use a cliché, you short-circuit cognition. You renounce your independent-mindedness and obviate the inconvenience and effort of thinking for yourself. There is felt to be a laziness about the use of cliché. There is also felt to be an undertone of self-legitimation, inasmuch as clichés tie us to normality, to respectability, to authority. In her study of the trial of Adolf Eichmann, Hannah Arendt remarks on Eichmann’s tendency to repeat ‘word for word the same stock phrases and self-invented clichés’, observing that ‘when he did succeed in constructing a sentence of his own, he repeated it until it became a cliché’.⁶

At the same time, Gillian Beer poses a fair question when she asks: ‘[H]ow would we live or communicate without clichés?’⁷ Clichés frequently belong to the category of phatic communication, meeting the need for general sociability, rather than putting across any specific proposition. As Beer explains, ‘cliché assures us that we all belong together…It wards off extreme intimacy of encounter’, while signalling comfortable ‘communality’.⁸ Redfern recalls that the French word ‘répétition’ has the double sense of reiteration and rehearsal.⁹ The repetition of familiar tropes facilitates the performance of social interaction. The darker side of that is, of course, that cliché is also exclusionary. Outworn, it is by no means washed-up; there is a potency in its very banality. Thus, clichés function as shibboleths that distinguish those in the know from those who fail to understand the clichéd expression or to appreciate its character as a cliché. At the same time, clichés serve as carriers of ideology that uphold the status quo by making the received version of right-thinking common sense too banal to question. Arendt’s attention to Eichmann’s patterns of speech has been read in this light: ‘To identify the cliché is to try to open up the possibility of dissent in the domain of the obvious.’¹⁰ Finally, clichés give expression to stereotypes that reinforce prejudices and perpetuate the marginalisation of low-status groups.

The concept of the stereotype takes us directly to the origin of the word ‘cliché’. Borrowed from French, the term comes from the world of printing. It refers to a moulded metal plate – a stereotype – cast for printing blocks of text. Whereas at first individual letters had always to be set one by one, in the early nineteenth century a process developed whereby phrases that were likely to appear frequently could be prefabricated as single units – ‘clichés’. The word is believed to be onomatopoeic: clicher is a variant of the more common cliquer (to click), and is understood to evoke the ‘click-clack’ sound made by the moulding matrix when it struck the surface of the molten metal to produce the plate. By extension, cliché came also to refer to plates for the printing of images, and later to other printing technologies, including photographic negatives. The figurative usage of cliché as a ‘prefabricated’ or stereotyped mode of expression had apparently gained currency in France by the 1860s. That figurative usage (though not, it seems, the literal usage) was then imported into English.¹¹ The Oxford English Dictionary dates the first occurrence in English to 1892.

The cliché, then, is a phenomenon of the nineteenth century that is bound up with processes of mechanisation, industrialisation and rationalisation, and with the emergence of a print culture enabling the mass circulation of texts. In tracing its history, Elizabeth Barry highlights the shift from the positively or neutrally coded ‘commonplace’ to the negatively coded ‘cliché’.¹² In classical antiquity commonplaces formed part of the study of rhetoric, and referred to particular starting points or thematics to be used in formal argument (topoi). Early modern European thought likewise embraced the idea of the commonplace, though not so much as an aspect of rhetoric, which fell widely out of favour insofar as it came to be associated with manipulative and insincere speech. Instead, the activity of ‘commonplacing’ and the ‘commonplace book’ became private pursuits, the collection of material in personal scrapbooks. According to Barry, what set the scene for the concept of cliché was the emergence of a mass market for the consumption of texts. Anxiety about vulgarisation, banalisation and inauthenticity arose as a concomitant of the increasingly wide and fast dissemination of words and ideas that was made possible by the new technologies of mechanical reproduction. Barry reports that an analogy became prevalent in Romantic literary aesthetics between ‘a mechanical use of language and the technical equipment of printing’.¹³

The first work thematising the concept of the cliché is often said to be Gustave Flaubert’s satirical novel Bouvard and Pécuchet, written in 1880, in which two copy-clerks embark on a search for knowledge that brings only errors, failures and disasters.¹⁴ The clerks’ putative commonplace book – published separately under the title of Dictionary of Received Ideas – catalogues clichés in such entries as ‘Rhyme: Never in accord with reason’; ‘Thicket: Always “dark and impenetrable”’; and ‘Unleash: Applied to dogs and evil passions’.¹⁵ By the middle of the next century, the denunciation of cliché had become considerably less subtle – a trend perhaps nowhere better exemplified than in George Orwell’s famously intemperate essay on politics and the English language.¹⁶

For Orwell, ‘the English language is in a bad way’, and a key aspect of the pathology is the prevalence of clichés.¹⁷ All too often, and especially in the discourse of politics and government, recourse is had to ‘ready-made phrases’ and ‘worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves’.¹⁸ Echoing the association mentioned above of ‘mechanical’ language with printing technology, Orwell writes that a ‘speaker who uses that kind of phraseology has gone some distance towards turning himself into a machine. The appropriate noises are coming out of his larynx, but his brain is not involved as it would be if he were choosing his words for himself.’¹⁹ The essay culminates in a series of rules for overcoming this state of affairs, of which rule 1 is ‘Never use a metaphor, simile or other figure of speech which you are used to seeing in print.’²⁰

II

Let us now begin to connect this discussion to international law.²¹ In doing so, we should note one further feature of cliché on which we have not yet touched. This is that cliché is, as Ruth Amossy and Elisheva Rosen observe, an inescapably relative phenomenon.²² There is no such thing as a ‘cliché in itself’.²³ Rather, clichés are specific to particular times. We mentioned earlier Partridge’s dictionary of clichés. It runs to some 250 pages, and puts asterisks next to clichés that are ‘particularly hackneyed or objectionable’.²⁴ Yet who today speaks of ‘heaping coals of fire on a person’s head’, or of ‘Lares and Penates’, ‘the clerk of the weather’, ‘in one’s palmy days’ or ‘hewers of wood and drawers of water’ – all of them asterisked as especially egregious clichés in Partridge’s most recent edition of 1978?

Clichés are also specific to particular places. To stay with verbal clichés, ‘Monday morning quarterback’, ‘fall off the turnip truck’, ‘blow this pop stand’ and ‘talk turkey’ might be – or once have been – used and understood by some people in the United Kingdom, but if so, these phrases would not be likely to be – or have been – heard as particularly clichéd. That said, the global circulation of language, or at any rate English, and perhaps especially American English, is a widely remarked phenomenon of our time, and it may be accelerating. As Hephzibah Anderson remarks, ‘Twitter, digital memes and the 24-hour news cycle can coin a cliché overnight, it seems.’²⁵

Finally, clichés are specific to particular contexts and communities. Hence Redfern’s remark near the beginning of his book on cliché that there is ‘no way of knowing whether my clichés are yours’.²⁶ Amossy and Rosen explain that clichés depend on conditions of reception that permit them to be recognised as such.²⁷ Along with the other aspects of relativity, this is, of course, a feature shared by the related phenomenon of idiom. But whereas idioms are unmarked lexical items, we have seen that it belongs with the distinctiveness of the cliché that it gives off an aura of loss or degeneration.²⁸ In order for that to occur, there must exist a situation in which, and an audience by whom, it is apprehended as exhausted, stale and devitalised, something that once fired the imagination, but does so no longer.

Learning to sort a field’s clichés from its idioms is an important competence that may serve as a badge of proficiency for those who have it and a handicap and barrier to entry for those who don’t. It is a competence that is often acquired through relationships of training or apprenticeship. We have already mentioned the training which we both received from James Crawford. Of course, that training was not limited to specialised international legal language. The clichés of international law are the clichés of everyday communication – and they are the clichés of policy debate, legal practice, institutional organisation and academic life as well. On the other hand, those wider terrains are not all-encompassing. As with Orwell’s domain of politics, there also exist clichés that are rooted in the distinctive history, literature, institutions and traditions of international law itself.

Thinking about cliché as a problem of international law, we might start by recalling the usage in international legal communication of banal and specious phases in general currency. ‘The reality on the ground’, ‘all the stakeholders’, ‘going forward’ and ‘drill down’ are a few contemporary examples. We can then notice the emergence of clichés peculiar to international law. These mostly arise from the overuse of language borrowed from academic literature or from the pronouncements of courts and tribunals. ‘The invisible college’,²⁹ ‘compliance pull’,³⁰ ‘a legal black hole’³¹ and ‘the dark sides’³² are some phrases that may be thought to exemplify this turn of events whereby resonant expressions become, in some sense, victims of their own success. To these figurative noun-phrases, one might add sentence-length propositions. It is now trite to say – as the cliché of legal discourse would have it – that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’.³³ So too, repetition has dimmed the rhetorical power of Judge Dillard’s chiasmus: ‘It is for the people to determine the destiny of the territory and not the territory the destiny of the people.’³⁴

But the clichés of international law are not, of course, only verbal. Perhaps the most notorious international legal clichés lie, in fact, in the visual domain – the domain of book covers, website homepages, institute logos and the like. Robert Musil once wrote that ‘[t]here is nothing in this world as invisible as a monument’,³⁵ and certainly the iconography of international law is replete with ‘monuments’ that have become more or less invisible. Maps are one example. Their overuse on the dust jackets of international legal books has largely drained them of the capacity to engage us imaginatively. We register them, of course, as images of the global scale of international law or of its preoccupation with boundaries, spaces and territories, but they do not detain us for long. They do not hold our attention or invite our scrutiny. Their evocative spark has gone faint. Yellowing antique maps, favoured in recent times to emphasise international law’s Eurocentric viewpoint (whether to place it comfortingly in the past or disturbingly in the present), scarcely escape this fate.

Images of justice – the blindfolded goddess Justitia or the set of scales she holds – together with the Earth as a globe are another example. A staple of logos of programmes, journals and professional associations in the international legal field, these once-inspiring representations now project reassuring normality, safe respectability and a rather bland, humdrum authority. As a final example, we might take the scenes of important people doing momentous things in settings of international law-making and adjudication that adorn international legal publications and promotional materials for international legal activities – statesmen shaking hands, diplomats negotiating around a table, Heads of State signing documents, representatives voting at the United Nations, international judges on the bench and other similar images. Are we to focus on who is present at these occasions or on who is absent from them? The images are so familiar that it becomes hard to remember even to ask such questions.

Alongside verbal and visual clichés, any discussion of cliché as a problem of international law must reckon with a further category of clichés that come rather less neatly packaged for inspection. We shall call this the category of ‘conceptual clichés’. Inasmuch as they are expressed through language, conceptual clichés might, of course, be assimilated to verbal clichés. But the focus here is less on the manner of speaking than on the manner of conceptualising things. Conceptual clichés are outworn ways of framing, analysing, thematising or otherwise thinking about the issues under investigation. In expressing conceptual clichés, we can usefully take our cue from Flaubert’s copy-clerks. Thus, some international legal examples might be ‘State sovereignty: Either eroding or persisting’; ‘The individual: Always emerging as a subject of international law’; ‘International legal system: Young, embryonic, primitive’; and ‘Balancing: Applied to freedom and security, state sovereignty and human rights, military necessity and humanitarian protection, etc.’ Stamped machine-like on the texts of international law, these topoi operate as stereotypes, shibboleths and performances of comfortable ‘communality’.

III

On the basis of what we have said so far, it seems that international law is as problematic when it comes to cliché as Orwell took politics to be. Rule 1 may well be more honoured in the breach than the observance. And, of course, there we go breaching it yet again. Orwell concedes that he breaches it too. ‘The debased language I have been discussing is in some ways very convenient’, he writes. ‘Look back through this essay, and for certain you will find that I have again and again committed the very faults I am protesting against.’³⁶ Does that make Orwell a hypocrite? For Christopher Ricks, the ‘only way to speak of a cliché is with a cliché’, with the result that ‘even the best writers against clichés are awkwardly placed’.³⁷ The problem, as he sees it, is that some of them do not always ‘winc[e] enough’.³⁸ But Ricks also shows that the issue is not only about wincing enough. Orwell is surely one of the best writers against clichés, and Ricks has something very interesting to say about the passage with which Orwell’s essay ‘Politics and the English Language’ ends.

The passage goes like this:

Ricks comments that ‘Orwell’s darkest urgings’ have, in these words, a ‘weirdly bright undertow’.⁴⁰ How so? Because ‘what is most alive in that sentence is not the sequence where Orwell consciously put his polemical energy’ – the ‘argumentative train of serviceable clichés’ that takes him from ‘worn-out and useless’, through ‘lump of verbal refuse’, to ‘into the dustbin where it belongs’ – but rather the sequence that lists the spurned clichés themselves:

Ricks concludes that ‘Orwell may have set his face against those clichés, but his mind…was another matter.’⁴² For even as Orwell disdains and dismisses this language as a useless heap of verbal rubbish, even as he sets schoolmasterish rules designed to ban it, he uses it to ‘create a bizarre vitality of poetry’.⁴³ The key word in that last sentence is actually ‘uses’. Ricks explains: ‘[u]sing is the nub’; the point is to use clichés, not be ‘used by them’.⁴⁴ Orwell proposes that clichés ‘anaesthetize a portion of one’s brain’,⁴⁵ but on the evidence of Orwell’s own writing, Ricks demonstrates that the great essayist is wrong. ‘Clichés invite you not to think’, Ricks writes, ‘but you may always decline the invitation’.⁴⁶ In a similar vein, Redfern remarks that ‘clichés are first thoughts’, but ‘we have the capacity for second thoughts’.⁴⁷

Ricks and Redfern belong to a critical tradition that urges contemplation of the imaginative possibilities of clichés. Rather than simply banning clichés, for these critics the more productive approach is often to do something with them. In any case, experience teaches us that a ban will not work. It will only serve to make everyone feel bad. As Redfern rightly avers, ‘we are all vulgarians’.⁴⁸ We can’t and won’t avoid using metaphors, similes and other figures of speech which we are used to seeing in print, even if it were a good idea for us to try. That means we also need to be careful as critics. For if clichés can serve as shibboleths – door-openers that also shut out those not in the know – so too the criticism of cliché can risk spilling over into self-delusion and snobbery. Besides, if clichés were really so worthless, why would they have such tenacity?

We have mentioned more than once that it is a characteristic feature of clichés that they are taken to be outworn and degraded, the trace of something once potent that has been dissipated through overuse. In the case of verbal clichés, what has been dissipated often seems to be their figurative charge. When we speak of an ‘acid test’, the acid is no longer vivid in our mind’s eye (or ear or nose). Because of this, clichés are sometimes thought of as ‘dead metaphors’ – that is to say, metaphors that we no longer recognise as figurative, metaphors in respect of which the comparison made in the metaphor is no longer imaginatively registered. The classic examples are expressions like ‘the foot of a mountain, ‘the leg of a table’, ‘to run in the family’. Some analysts of language dispute this concept, arguing that even in expressions of that kind there is some ‘bare spark of life’.⁴⁹ But certainly, when it comes to clichés, those who highlight the possibility of their creative deployment insist that ‘dead metaphor’ is not, in fact, the right way to think of them. Of course, no one disputes that it is a defining feature of cliché that it has lost vigour, but rather than taking clichés for dead, these scholars encourage us to see them as merely ‘sleeping’.⁵⁰

The implications of seeing metaphors as sleeping are explored by Chaim Perelman and Lucie Olbrechts-Tyteca in their celebrated treatise on the ‘new rhetoric’.⁵¹ (The term actually used in the English edition of their book is ‘dormant’.) To characterise a metaphor as dormant, they propose, is to intimate that it is inactive, but that ‘this state of inactivity may only be transitory’, so that ‘the metaphor can be awakened and become active again’.⁵² We can be led again to see, hear and smell the fizz of the unverified substance as it hits the acid, and through that, we can be led to reflect on the imagery of the ‘acid test’ and on how it directs, channels and frames our thinking about the nature of truth and of truth-testing. Perelman and Olbrechts-Tyteca describe a number of ways in which dormant metaphors may be awakened. They may be awakened by being placed in a context that is different from their usual one (recontextualisation).⁵³ They may be awakened by being set alongside another cliché or other clichés (juxtaposition). They may be awakened by being developed or extended in a new way (development or extension). And they may be awakened by being taken literally (literalisation).

The awakening of dormant metaphors is the stuff of much everyday playfulness and humour.⁵⁴ It can make us laugh, but in doing so, it can also make us think. In a book about cliché published in 1970, Marshall McLuhan reports a funny story that illustrates the first of Perelman and Olbrechts-Tyteca’s methods of metaphor-awakening – recontextualisation:

The boy in this story has placed the cliché of clichés as ‘worn-out expressions’ in a context that is different from its usual one, and in so doing, he has jolted it awake. To be sure, the awakening took a bit of explanation. But once it happened, the imagery of exhaustion and expression would have become, for his teacher and classmates, at once strikingly vivid and newly, comically strange.

Many of the authors to whom we have referred in this section, McLuhan included, highlight the prominence of metaphor-awakening in the work of modernist writers like James Joyce, T. S. Eliot, Eugene Ionesco and Samuel Beckett. Here is one example from Beckett’s Happy Days:

Beckett uses here the second of Perelman and Olbrechts-Tyteca’s methods – juxtaposition. The clichés tumble out, one on top of the other, in a way that draws attention to their clichéness: the ‘old style’ of speaking. What is that old style? Is it really ‘old’ – or also new? Sweet – or also bitter? A style – or also a regime of knowledge and power? H. Porter Abbott observes that, in passages such as this, Beckett exposes ‘a still-active power in clichés, a power that works on us in our slumber’. For, Abbott suggests, ‘it is not really the metaphors that sleep but we who use them’.⁵⁷

IV

To recognise international law as a domain of cliché is also to grasp international law as a domain in which things can be – and have been – done with cliché. In this final section, we want to illustrate the potential for rousing (or, as the case may be, not rousing, even further enervating) international legal clichés by returning to some of the verbal, visual and conceptual clichés to which we referred earlier. In particular, we want to return to ‘the invisible college’, the erosion or persistence of sovereignty, ‘a legal black hole’ and images of maps and important people. Beginning, then, with the first of these, it is part of the cliché of the invisible college to recall that this phrase was coined by Oscar Schachter in an article published in 1977.⁵⁸ Schachter wrote that ‘the professional community of international lawyers…, though dispersed throughout the world and engaged in diverse occupations, constitutes a kind of invisible college dedicated to a common intellectual enterprise’.⁵⁹ He referred to this community’s role in giving ‘meaning and effect’ to the conception of ‘la conscience juridique’,⁶⁰ but said that, in order to fulfil that role, it had to become more visible to State officials. There was also a need for wider ‘participation embracing persons from various parts of the world and from diverse political and cultural groupings’.⁶¹

In 2001 the American Society of International Law chose as the theme of its annual meeting ‘The Visible College of International Law’. The organisers explained that they found:

They said that their theme was designed to focus attention on the ‘historical evolution, our current status, and our future prospects as a college, we submit, an increasingly visible college, of international legal scholars, practitioners, policy makers, and social scientists’.⁶³ To speak of the ‘visible’ college of international law is to develop the cliché by replacing ‘invisible’ with ‘visible’. In Beckett’s Waiting for Godot Estragon similarly replaces the usual terms of a cliché with different ones when he says: ‘On the other hand it might be better to strike the iron before it freezes.’⁶⁴

What makes Beckett’s formulation arresting is that he plays against the cliché about striking while the iron is hot (and also perhaps adds into the mix another cliché about hell freezing over). Suddenly we see again the blacksmith sweating over his forge – the image that had become displaced by the idea of acting while conditions are right. In contrast, the American Society of International Law plays into the clichéd call for transparency and diversity in the discipline of international law, leaving that call largely undisturbed. The same may be said of a blog that recontextualises the cliché of the invisible college by taking it as its name. The ‘Invisible College’ blog is linked to the Netherlands School of Human Rights Research.⁶⁵ Again evoking ‘Schachter’s famous article of 1977’, its stated aim is to provide interesting commentary on international law and also to serve as a community resource for the contemporary invisible college, publicising courses, job opportunities, web materials etc.

More promising, perhaps, is the title given by Hilary Charlesworth to an article on ‘feminist futures for the United Nations’: ‘Transforming the United Men’s Club’.⁶⁶ In substituting the openly exclusive concept of the club, and combining it with both ‘United Nations’ and ‘(gentle)men’s club’, Charlesworth literalises the invisible college of international lawyers. That is to say, she makes it not simply a metaphor for relative opacity and homogeneity, but an actual body or institution, like the College of Cardinals or the Garrick Club. Schachter has said that he chose the metaphor of a college because the ‘group that formed the international law community in the past…used to be a fairly small community made up almost entirely of upper-class, European, French-speaking, male lawyers who knew or were related to one another’.⁶⁷ Charlesworth restores the whiff of cigars, bringing it into the present and implicitly reminding us that colleges, like clubs, permit only so much democratisation. In her hands, the ‘college’ becomes less a project to be advanced than a reality to be transformed.

Passing now to sovereignty, Louis Henkin once declared his belief that this word should be dropped from the vocabulary of international law.⁶⁸ ‘[I]t is time’, he wrote, ‘to bring “sovereignty” down to earth, cut it down to size, discard its overblown rhetoric…; to repackage it, even rename it, and slowly ease the term out of polite language in international relations, surely in law.’⁶⁹ Henkin’s approach to the clichés that cluster around the concept of sovereignty highlights a point on which we have not yet had occasion to touch, though it may have been implicit in our discussion so far. This is that if, as we have seen, clichés are apprehended as exhausted, stale and devitalised, they are indeed apprehended as so exhausted, stale and devitalised that they are not only unworthy of use; they are unworthy even of critical interrogation. They are simply to be avoided, banished, abjured. This explains why, to a much greater extent than other kinds of self-evident truth or taken-for-granted representation, clichés fly under the critical radar, escaping all forms of consideration other than censure.

In contrast, David Kennedy has the cliché firmly in his sights when he characterises sovereignty as ‘a rhetorical toolkit, a glimmering and shifting style of presentation and address, at once fashionable and passé, fighting words and cliché’.⁷⁰ He goes on: ‘We could call it [sovereignty] a shrewd balance, a recurring contradiction, an enduring problem at the core of the discipline, updated in each era.’⁷¹ And again: ‘A thousand calls for [sovereignty’s] elimination over the last hundred years, its death announced a thousand times in speeches and articles about the “new” interdependence, still it continues to structure our legal positions, our political alliances, our discipline’s imagination.’⁷² Finally: ‘[H]owever much we love to hate sovereignty, it reappears in our dreams as desire.’⁷³ As in Happy Days, the clichés come tumbling out here, producing – as Ricks discerns also in Orwell’s writing – a bizarre vitality of poetry. The ‘shrewd balance’ corrects the ‘recurring contradiction’, which results from the ‘enduring problem at the core’. ‘Reports of my death are greatly exaggerated’ by the ‘thousand calls’. The ‘face that launched a thousand ships’ is someone we ‘love to hate’, but would marry ‘in our dreams’. Far from censuring the clichéd ‘issues’ of State sovereignty, Kennedy embeds them in a series of juxtapositions that invite attention to, and interest in, the sovereignty tropes as clichés.

Our next cliché – that of Guantánamo Bay as a legal black hole – exemplifies the speed with which clichés may arise. First coined in the context of a judgment rendered by the English Court of Appeal in 2002,⁷⁴ and used again a year later by the English judge Johan Steyn as part of the title of a lecture on the detentions at Guantánamo Bay,⁷⁵ the image of the legal black hole became timeworn very quickly. Along the way, it attracted more than the usual amount of critical attention. In one of the most insightful critiques, Fleur Johns argued that the metaphor was flawed and misleading, insofar as it implied that Guantánamo Bay was a lawless zone or a place empty of law.⁷⁶ In fact, as she reminded us, the United States’s island prison was not at all lawless or legally empty; it was ‘filled to the brim’⁷⁷ with law, whether as a result of the processes of international, constitutional, administrative, military, regulatory, immigration or some other kind of law. It followed that the problems of arbitrary detention, unfair trials and abusive treatment could not simply be solved by the application of law.

Although it was not part of Johns’s purpose to propose that people should stop using the phrase ‘legal black hole’ to describe Guantánamo Bay and similar spaces, her analysis pointed in that direction. But what if the metaphor had layers of meaning that were not specious in this context? And what if, with regard to those layers, it was simply dormant, and could be awakened? The US National Aeronautics and Space Administration (NASA) explains black holes in the following terms:

NASA also explains that:

In a recent book on the Black Hole of Calcutta, Partha Chatterjee shows that, in that very different context, the phrase ‘black hole’ has somewhat analogous connotations.⁸⁰ On the one hand, the Black Hole of Calcutta was a cell in which 123 British soldiers taken prisoner by the Nawab of Bengal allegedly died by suffocation in 1756. (By extension, ‘the black hole of Calcutta’ later became synonymous with any confined and suffocating space.) On the other hand, very little is directly known about the Black Hole of Calcutta. Inasmuch as there are conflicting accounts of where exactly it was located, and what happened inside it, it remains obscure.

All this points to the possibility that the ‘legal black hole’ might be made actually to align with Johns’s critique. Instead of jettisoning the metaphor, we might extend it so as to recover and reawaken a twofold sense of being stuffed full and not easily comprehended.⁸¹ As in Johns’s analysis, Guantánamo Bay could then seem a highly legalised space, not one empty of law. And as in her analysis too, the challenge it throws up could be less to secure the application of law than to understand the law’s complicities and limitations. But, of course, the ‘legal black hole’ does not only express the condition of the law. It also expresses the condition of the people held. In a never-ending war on terror, these detainees cannot be released, any more than light can escape from a black hole. Moreover, like the prisoners of the Nawab in the story of the Black Hole of Calcutta, they have been cruelly treated. Is the scandal of the ‘legal black hole’ that the administration of the United States is being likened to an ‘uncivilised’ eighteenth-century Bengali ruler? Or does the parallel work the other way, chiming with criticism that the most high-profile detainees at Guantánamo Bay have been citizens of Western countries whose governments have intervened on their behalf or whose cases have been aired in the Western media?

To complete this brief illustrative review, let us turn finally to visual clichés. We referred earlier to the overuse in connection with international legal publications of maps and of scenes of important people in international law-related settings. Consider the following cover image. A man is sitting at his desk in a high-backed leather chair. He is white, in late middle age, and is wearing a three-piece mid-grey suit with wide 1950s-style lapels. His arms are folded, and his face is expressionless. His gaze is directed off to one side. He leans back in his chair. On the wall behind the man is a map. It takes up the entirety of the space behind him. The North Atlantic Ocean is to his right, the Indian Ocean to his left. The scale of the picture is such that his head is about the same size as West-Central Africa. Indeed, his head largely blocks those regions from view, along with the rest of the sub-Saharan continent. In front of the man, on the desk, is a large blurry shape that appears to be an open hard-sided attaché case. We see an extended diagonal hinge, again out of focus, ending at about Washington DC. This is the image on the cover of Sundhya Pahuja’s Decolonising International Law. It’s a black and white photograph, and a note on the back of the book informs us that the man is Eugene R. Black, president of the World Bank from 1949 to 1963.⁸²

Pahuja’s cover reawakens the visual clichés of international legal publishing by literalising them and inviting attention to the material realities behind them. One of the characteristics of cliché, as we have seen, is evanescence; clichés fade into the background, unable to hold our attention or induce us to examine their detail. In the photograph on the cover of Pahuja’s book, the map is literally in the background. Furthermore, the map itself is not a representation of a map; it is a literal map hanging on the wall of Black’s office. As Black sits with his back to it, he literally claims a place in the order of international development before, or in front of, Africa. The fact that he obscures most of the continent also makes literal the old cliché of the ‘dark continent’. The hinge of the attaché case connects Black’s chair with the approximate location on the map of Washington DC, similarly literalising the seat of the World Bank. We get a good view of Black’s face, but the rest of his body is partly obscured by the attaché case and desk. He is literally a Head. What then of the organisation of which he is head – is the World Bank literally a world bank? The picture’s blurry foreground suggests that, on certain questions raised by an enquiry into the decolonisation of international law, we currently have no clear answers.

Conclusion

Faced with the phenomenon of cliché, we have contrasted two approaches which we have found in the literature on this subject. One approach is to say ‘Away with cliché!’. This is epitomised by George Orwell in his essay ‘Politics and the English Language’, with its injunction never to use phrases which you are accustomed to seeing in print. The other approach is to say ‘Do something with cliché!’. Samuel Beckett was a master of this, but Christopher Ricks encapsulates the point of it when he speaks of using clichés, rather than allowing oneself to be used by them. The first of these two approaches is – to us, at least – the more familiar; the second, the more challenging. Together, they express what Elizabeth Barry has termed ‘the impasse of attraction and resistance to cliché’.⁸³

International law designates a field of cliché. That field overlaps with, or is partly encompassed by, other fields of cliché, both specialised and everyday. But it is also partly distinct. Clichés specific to international law often originate as quotations from academic literature, from the pronouncements of courts and tribunals, or from the language of international institutions. Quotation – repetition – is key to the emergence of clichés. Of course, repetition also has a wider significance in law, including international law. The click-clack of cliché is integral to all jurisgenerative processes. As a problem of international law, however, cliché is fundamentally about international legal thought – its independence, vitality and creativity.

A ‘war against cliché’ has been declared, and is going on around us. What is, or should be, the situation on the international legal front? As we approach now the end of our discussion, we confine ourselves to one further observation. This is that it is among the clichés of clichés that they need to be ‘attacked’ and defeated militarily.⁸⁴ That is to say, the ‘war against cliché’ is itself a cliché. To engage in it is to be undermined in one’s efforts to pursue it by that very gesture. And if, somehow, the war could be won, what would victory look like? Would it not serve only, as Ricks puts it, to replace ‘tyranny-by-clichés’ with ‘tyranny-over-clichés’?⁸⁵ Here is Redfern’s friendly advice: ‘Clichés will not go away, nor should we even desire them to. Use them. Know them. Use them knowingly.’⁸⁶

Introduction

‘[W]e surely have a responsibility to act when a nation’s people are subjected to a regime such as Saddam’s.’¹ During its short life, the ‘responsibility to protect’ (R2P) has experienced gains and setbacks, with the greatest setback coming in March 2004 when Tony Blair invoked the concept in an attempt to justify the previous year’s invasion of Iraq.

R2P is of interest to international lawyers and international relations scholars alike. It is a result of ‘norm entrepreneurship’.² It achieved prominence quickly, with only four years separating its birth in 2001 from its inclusion in the United Nations World Summit Outcome Document in 2005. But with success came controversy and compromise. On the key issue of the use of military force, R2P has – by widespread agreement – been confined to the context of UN Security Council decision-making, where it remains non-binding.

This chapter examines the interaction between R2P, the prohibition on the use of force set out in the UN Charter, and the discretionary power of the Security Council to determine the existence of a ‘threat to the peace’ and authorise military action.³ It asks: to what degree, if any, has R2P become part of contemporary international law concerning the use of force? And what does the history of R2P tell us, more generally, about ‘norm entrepreneurship’ and processes of legal change?

The chapter concludes that R2P has neither acquired legal status as a new exception to the prohibition on the use of force, nor exerted much influence on the rest of the international legal system. At the same time, the concept may – on an ad hoc basis – be influencing how States respond when another State violates the law while seeking to prevent atrocities. If so, the principal legal effect of R2P might concern mitigation of the consequences of rule-breaking, rather than any changes to the rules themselves.

Development of R2P

The central obligation of the UN Charter is set out in Article 2(4):

According to the international rules on treaty interpretation, a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.⁵ The ordinary meaning of Article 2(4) is clear: the use of force across borders is prohibited. This meaning is supported by the context of the terms and the object and purpose of the treaty, with the Charter’s preamble affirming the determination of its members ‘to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest’.⁶ The Charter allows only two exceptions to the prohibition: Security Council authorisation and the right of self-defence. Only the first of these exceptions is of much relevance to R2P.

Under Chapter VII of the UN Charter, the Security Council has wide powers to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and authorise military action. These powers went unexercised during the Cold War, apart from a possible authorisation in Korea in 1950 and a clear but tightly constrained authorisation concerning Southern Rhodesia in 1966. In the latter situation, the Security Council took a significant step in determining that human rights violations – in this case the racist policies of a white minority government – constituted a threat to the peace. It imposed a wide-reaching embargo and, in Resolution 221, called upon the United Kingdom ‘to prevent, by the use of force if necessary, the arrival of vessels reasonably believed to be carrying oil destined for Southern Rhodesia’.⁷

Legal status of R2P

Prior to Blair’s 2004 speech, much of the literature on R2P either continued the debate that had previously been framed as ‘unilateral humanitarian intervention’, or discussed the concept in the post-9/11 context of self-defence and preventive military action.⁶⁹ But even before Blair’s demonstration of the potential for the abuse of R2P by powerful states, it was already apparent that the threshold for changing the prohibition on the use of force was unachievable. Both the widespread opposition of developing States and the jus cogens character of the prohibition rendered the idea of an R2P exception a non-starter in a legal system where rules are changed through the actions and opinions of nearly 200 states, and where a small number of rules are more deeply entrenched than the others.⁷⁰ Gareth Evans, one of the ‘norm entrepreneurs’ behind R2P, has summarised the new consensus: ‘The 2005 General Assembly position was very clear that, when any country seeks to apply forceful means to address an R2P situation, it must do so through the Security Council…Vigilante justice is always dangerous.’⁷¹

This chapter could end here: with the conclusion that R2P, insofar as it concerns the use of force, is now limited to being part of the content of Security Council decision-making. However, it may prove useful to extend the analysis one step further, by examining whether R2P is having any influence on the margins of the prohibition on the use of force, and specifically on the rules proscribing the provision of aid, assistance, training, equipment and arms to rebels.⁷²

Implications for the international legal system

The on-going development of R2P offers a number of insights into the international legal system. First, ‘norm entrepreneurs’ who act strategically and persistently can have a significant influence on the framing of debates concerning specific issues of international law.

Secondly, such efforts can be interrupted by unanticipated events, including attempts to distort or hijack the norm by other actors.

Thirdly, unanticipated events can necessitate compromise and redirection, which in the case of R2P has involved the limitation of the concept, insofar as it concerns the use of force, to being part of the context of Security Council decision-making.

Fourthly, compromise and redirection may also result when ‘norm entrepreneurs’ realise that some aspects of the international legal system, such as the prohibition on the use of force, are deeply imbedded and therefore highly resistant to change. This is not to say that ICISS members were naïve about the existence of jus cogens rules or the necessity for widespread support from the developing world for any change. Strategically, it is sometimes useful to set one’s public goals higher than the results one realistically hopes to achieve. For this reason, acceptance of R2P as relevant context for Security Council decision-making has to be considered a victory, even if some proponents of the concept remain dissatisfied.¹¹⁰

Fifthly, the failure of ‘norm entrepreneurs’ to change a rule does not necessarily mean that they have failed to influence associated or derivative aspects of the legal system. In the case of R2P and the prohibition on the use of force, the failure to change the rule concerning military interventions has not precluded a possible change to the same rule as it applies to the provision of aid, assistance, training and non-lethal equipment to rebels fighting to prevent atrocities, and perhaps even of weapons. Practitioners and scholars of international law would be wise to pay attention, not just to the central aspect of any rule, but also to its often-more-mutable margins.

Finally, the effects of ‘norm entrepreneurship’ can include changes that are additional or alternative to changes to rules. In the case of R2P, both as it concerns unilateral humanitarian intervention and the provision of arms to rebels, it is important to consider whether the development of the concept will lead to increased mitigation of the consequences – for States whose moral compulsion to violate international law is both genuinely felt and well-founded.

In the future, R2P may lead to more changes in the international legal system. But instead of beginning at the core of the prohibition on the use of force, the changes will most likely commence at the margins. International law is often like that, moving forward sideways.

Introduction

It was an immense privilege, pleasure and honour to work as a research assistant for, and then be supervised as a doctoral student by, James Crawford. Whereas the opportunity to contribute to a volume in tribute to him by some of his former doctoral students follows from that, it has its own special significance. The passage of time since those days has deepened the sense of great fortune one feels at having had the opportunity of sustained and deep contact, at a particularly formative period in one’s life, with someone capable of having such a tremendously positive personal impact. One is reminded by the inevitable ups and downs of life that things could easily have been very different, and so how precious, in the light of that, the experience then was. James was frank, honest, unsparing in criticism, unwaveringly supportive, fair and sensible. He always gave one the impression of considerable faith in and commitment to one’s ability and merit and, when I felt that this was unwarranted, it made me raise my game.

More personally, for me as a British person from a family where no one had previously stayed at school beyond the age of sixteen, James’s lack of pretention and absence of grandness, and his exclusive focus on aspirations to merit and excellence, were of immense significance. To have a Cambridge experience that enabled me to move further away from, not closer to, the horrors of the British class system is a mark of the positive significance of James’s personal character and the especially beneficial impact of that on the university in general and his students and colleagues in particular. The atmosphere at the Lauterpacht Centre for International Law under his tenure was, I now see, a model of collegiality, with people working in very different roles in an atmosphere marked by a remarkably unhierarchical, friendly and mutually supportive tone. My memories of that time combine stimulating work challenges and inspiring lectures and discussions with the warmth, fun and friendship of the regular morning coffee meetings, lunches, dinners, barbecues and parties.

In paying tribute to James, I offer a critical evaluation of the significance of the International Court of Justice’s (ICJ) express pronouncements on the extraterritorial application of human rights treaties in the context of determinations on this area of law by other courts and tribunals. These pronouncements were made in three decisions: the Wall Advisory Opinion of 2004; the 2005 Judgment in the DRC v. Uganda case; and the 2008 Provisional Measures Order in the Georgia v. Russia case.¹ As will be discussed, the significance of these pronouncements to the law on the extraterritorial application of human rights law built on a statement in the Court’s Namibia Advisory Opinion from decades earlier, 1971.² Although not about this area of law as such, that statement can nonetheless be regarded as foundational to how the law is now understood. This piece forms part of a body of scholarship on the broader issue of the ICJ and international human rights law.³

There are certain direct connections between some of these cases and James Crawford. He was counsel for Palestine in the Wall advisory proceedings and for Georgia in Georgia v. Russia. The position of these two States on the topic at issue in the present chapter – whether or not certain human rights treaties apply extraterritorially – prevailed and was endorsed by the Court in the decisions under evaluation. The Namibia Advisory Opinion dates of course from a different era, but even here there are significant links. The year it was issued, 1971, was the same one that James was awarded his joint honours LLB-BA degrees from Adelaide University. The Namibia Opinion constitutes a landmark not only, as will be argued, on the present topic of the extraterritorial application of human rights law, but also more generally on the law of self-determination (not unconnected), a subject on which that graduate of the same year went on to become one of the leading, if not the leading, academic authorities.

More broadly, the topic of this chapter, and James’s intellectual career, challenge the banal generalist/specialist distinction that has arisen in the context of the massive increase in the range and depth of international law that, indeed, one might also say has occurred since 1971 – a further trend that links the topic to the person. Just as James, the quintessential ‘generalist’, has made seminal contributions in every ‘specialist’ area of law he has engaged with (of course one cannot hope to appreciate the specific without a complete, authoritative understanding of the general) it will be suggested that the ICJ’s pronouncements on this area of law are just as, and in some cases more, significant than what has been said by specialist human rights bodies. There is a further, more basic but still significant, stylistic link in the importance of brief, pithy remarks that convey a depth of authority, significance and, ultimately, merit.

The contested issue and treaty law framework on extraterritoriality

The Court’s determinations on the question of the extraterritorial application of human rights treaty law obligations were made at the time when this question was highly contested.⁴ The entry-level matter of the very applicability of the obligations themselves – as distinct from consequential questions, such as what they would mean were they to apply, or how this meaning would be mediated by the interplay with other applicable law – was disputed.⁵ Such a situation was possible in part because the relevant provisions of the treaties contain terminology on applicability that lack a clear indication of spatial scope.

Some of the main treaties addressing civil and political rights, the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (ACHR) and the European Convention on Human Rights (ECHR) and their Protocols, the Convention Against Torture (CAT), as well as the Convention on the Rights of the Child (CRC), which also covers economic, social and cultural rights, conceive obligations as operating in the State’s ‘jurisdiction’. Under the ECHR (and some of its Protocols) and the ACHR, the State is obliged to ‘secure’ the rights contained in the treaty within its ‘jurisdiction’.⁶ Under the CAT, the State is obliged to take measures to prevent acts of torture ‘in any territory under its jurisdiction’.⁷ Under the CRC, States parties are obliged to ‘respect and ensure’ the rights in the treaty to ‘each child within their jurisdiction’.⁸ The ICCPR formulation is slightly different from the others in that applicability operates in relation to those ‘within [the State’s] territory and subject to its jurisdiction’.⁹

Thus a nexus to the State – termed ‘jurisdiction’ – has to be established before the State’s obligations are in play (the significance of the separate reference to ‘territory’ in the ICCPR will be addressed below).

Certain other international human rights instruments do not contain a general provision, whether using the term ‘jurisdiction’ or some other equivalent expression, stipulating the scope of applicability of the obligations they contain: the 1948 (Inter-)American Declaration of the Rights and Duties of Man (not a treaty), the 1981 African Charter on Human and Peoples’ Rights, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the 1979 International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000.¹⁰ That said, as far as the Inter-American Declaration is concerned, the Inter-American Commission on Human Rights has treated the instrument as if it does contain the ‘jurisdiction’ trigger, without any explanation for this assumption.¹¹

The obligation to secure the economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not include a dedicated stipulation concerning spatial applicability. The relevant provision simply obliges parties ‘to take steps, individually and through international assistance and co-operation…with a view to achieving progressively the full realization of the rights recognized in the present Covenant’.¹²

The vagueness of the provisions in the instruments reviewed enables the scope of their spatial applicability to be easily disputed. ‘Jurisdiction’ could be regarded as a synonym for presence in sovereign territory only, thereby ruling out extraterritorial applicability. Alternatively, it could be defined in some way that includes, but is not limited to, a State’s presence in its sovereign territory, but is defined in a manner that only covers a subset of extraterritorial activities (for instance, requiring a certain level of control), thereby creating the possibility for disagreements over which activities are covered. ‘Free-standing’ obligations could be regarded as operating in any spatial zone in which the State is present, or, alternatively, a claim could be made that a limitation to sovereign territory should be read into them.

Decisions by other bodies and the Court

By the time the ICJ came to pronounce upon the extraterritorial applicability of certain of the aforementioned human rights treaties, there were already other decisions (judicial, quasi-judicial, advisory) on the topic, and the process of overlapping deliberations continued during the period in which the Court became seized of the topic. Prominent were decisions of the United Nations Human Rights Committee (expressed through its Views and General Comments),¹³ the Inter-American Commission of Human Rights,¹⁴ the European Commission and Court of Human Rights,¹⁵ the United Nations Committee Against Torture,¹⁶ the United Nations Committee on the Rights of the Child¹⁷ and judgments of domestic courts such as in the United Kingdom.¹⁸

The question of the extraterritorial applicability of human rights law treaties raised in the ICJ cases concerned the applicability of the treaties to Israel in the Palestinian Territories in the context of the occupation in general and the construction of the separation barrier in particular, to Uganda in the DRC in the context of the military action by the latter in the territory of the former and to Russia in Georgia in the context of Russia’s support for the breakaway Republics of Abkhazia and South Ossetia, including through military action in 2008. The treaties at issue were the ICCPR (Wall and DRC v. Uganda), the CRC (DRC v. Uganda), the CRC Optional Protocol (DRC v. Uganda), the African Charter (DRC v. Uganda), the ICESCR (Wall Advisory Opinion) and the CERD (Georgia v. Russia).

Just as in general many of the States who act extraterritorially – and whose legal position is, therefore, directly at stake – refute applicability in this context, so the three States whose obligations were being determined in these cases – Israel, Uganda and Russia – advanced the view that the treaties at issue did not apply to them in the territories under consideration.

The way the Court rejected these positions, and affirmed extraterritorial applicability, involved a series of assertions with a more general significance for the debates on applicability. Moreover, as will be explained, the Court’s contribution to understandings of what obligations should mean in the extraterritorial context builds upon what it had said decades previously in the Namibia Advisory Opinion concerning South Africa’s obligations to the people of that territory. The Court’s contribution in this field can be divided up into five distinct elements; these are set out in the following sections.

In the first place, in the Namibia Advisory Opinion, the Court established the principle that territorial control, rather than the enjoyment of territorial sovereignty (that is, title) should be the basis for the operation of State obligations in general. Although not a determination specifically about international human rights treaty obligations, this broad proposition paved the way for later decisions about human rights law by both human rights bodies and, subsequently, the Court itself.

In the second place, for treaties containing the ‘jurisdiction’ trigger for applicability, the Court both supported prior affirmations by other bodies that this trigger has an extraterritorial dimension and offered original affirmations of its own.

In the third place, for treaties that have a ‘free-standing’ model of applicability, the Court has for some instruments treated them as if they did contain a ‘jurisdiction’ clause, which operates extraterritorially, and for other instruments affirmed extraterritorial application in a simpler fashion.

In the fourth place, the Court’s pronouncement upon the ‘exceptional’ nature of extraterritorial activities is potentially significant for the regulation of these activities by human rights law when compared to similar pronouncements by certain other bodies.

Similarly, in the fifth place, the Court’s approach to the application of human rights treaty obligations to a State acting in territory not forming part of the territory of another State that is a party to the same treaty is highly significant given what has been suggested by certain other decisions on this matter.

The Court’s contribution (1): Namibia – control not sovereignty; effective control a trigger

In the Namibia Advisory Opinion the ICJ stated that South Africa, which at the time was unlawfully occupying Namibia, was:

This opinion was issued before the main decisions by human rights bodies on the extraterritorial application of human rights treaties. It is not, of course, a decision about human rights-specific treaty law as such, although it concerns the ‘rights of the people of Namibia’. The reference to ‘obligations and responsibilities under international law towards other States’ and ‘liability for acts affecting other States’ assumes an inter-State focus, although such a focus can include human rights given that obligations of this type are contained in treaties between States, and that certain such obligations (including those at issue here, the prohibition of racial discrimination and the right of self-determination) are regarded as operating erga omnes, implicating a generalised community interest on the part of all States.

Whatever the intended meaning in the case of South Africa and the people of Namibia, and the significance for rules concerning applicable law in general and human rights law in particular, as a general proposition the echo of this statement can be traced through later decisions on the applicability of human rights treaty law in two related but distinct respects. First, the fundamental point that State responsibility should not be limited to situations where a State enjoys title is the basic underpinning of extraterritorial applicability. Secondly, the particular concept of ‘physical control over territory’ as a basis for determining where obligations should subsist has been adopted in later human rights decisions, notably those made in interpreting the meaning of ‘jurisdiction’ in the European Convention on Human Rights, as one of the two main triggers for extraterritorial applicability, the second being a concept of control exercised over individuals.²⁰ The extraterritorial applicability of human rights treaties based on the exercise of control over territory – the ‘spatial’ or ‘territorial’ trigger – finds its origin in this more general concept from the ICJ.²¹

It would be no exaggeration to say, then, that the ideas first judicially affirmed by the ICJ are both the underpinning of the notion of the extraterritorial application of human rights law itself, and also one of the two main ways in which the trigger for such application has been defined. They foreground subsequent approaches taken on these issues by human rights bodies and the Court itself.²² In retrospect, it can be said that the ground-breaking decision on the extraterritorial application of human rights law came from the ICJ, not from a human rights tribunal, and well before the canonical decisions were issued on the topic by such tribunals.

Just as the Court paved the way for later approaches taken on extraterritorial applicability that were directly concerned with human rights treaty law, so too the Court later became involved in offering approaches of its own to the topic. Its contribution here can be split into different elements, beginning with the question of the extraterritorial meaning of the term ‘jurisdiction’ as used in human rights treaties.

The Court’s contribution (2): affirming the extraterritorial meaning of ‘jurisdiction’

The general refutation of the extraterritorial application of human rights law made by many of the States which would be subject to the obligations were they to apply – including Israel, Uganda and Russia with respect to the three ICJ decisions in this field – has been primarily concerned with the term ‘jurisdiction’ in some of the main human rights treaties. This term, it is argued, means the State’s presence in its sovereign territory only, and so in circumstances where it serves as the trigger for applicability, the relevant obligations do not apply extraterritorially.²³ In the particular case of the ICCPR provision on applicability, which as mentioned earlier addresses those ‘within [the State’s] territory and subject to its jurisdiction’, the argument is made that the inclusion of the word ‘territory’ in addition to ‘jurisdiction’ should be read to suggest that jurisdiction is limited to territory, thereby ruling out extraterritorial applicability.²⁴ Arguments have also been made against the extraterritorial application of the ICESCR, for example by Israel in the context of the situation in the Palestinian territories.²⁵

Even before the Wall Advisory Opinion and the DRC v. Uganda and Russia v. Georgia decisions were issued by the ICJ, the consistent position adopted in relation to international human rights instruments by international review bodies was the opposite of the rejectionist position. The term ‘jurisdiction’ in the ECHR, ACHR, CAT and CRC has been interpreted to operate extraterritorially in certain circumstances.²⁶ The aforementioned treatment of the applicability of the (Inter-)American Declaration by the Inter-American Commission on Human Rights in terms of the exercise of ‘jurisdiction’ was in the context of extraterritorial activity, which it regarded as capable of constituting the exercise of jurisdiction and thereby falling under the scope of the obligations in the Declaration.²⁷ Similarly, the ICCPR was interpreted as applying extraterritorially by the UN Human Rights Committee in Views issued in 1981 and a General Comment of 2004.²⁸ In general, the term ‘jurisdiction’ has been defined extraterritorially as the exercise of control over either territory – the concept, indicated earlier, which has its origins in the Namibia Advisory Opinion, sometimes referred to as the ‘spatial’ or ‘territorial’ definition²⁹ – or individuals, sometimes referred to as the ‘individual’, ‘personal’ or, because of the identity of the foreign State actor involved, ‘State agent authority’ definition.³⁰

The significance of the ICJ’s determinations on this issue was to bolster some of the affirmations of extraterritorial applicability that had already been made by expert bodies in relation to the ICCPR and the CRC.

In the Wall Advisory Opinion and the DRC v. Uganda Judgment the Court affirmed that the ICCPR is capable of extraterritorial application.³¹ This bolsters the credibility of the Human Rights Committee’s position on this question, and, by the same token, the credibility of the rejectionist view is weakened. It is also significant more broadly within the Court’s jurisprudence because the Human Rights Committee’s position is expressly cited by the Court in its reasoning on the issue in the Wall Advisory Opinion, both as a general matter and as far as the position of Israel in the Palestinian territories in particular is concerned (the reasoning in DRC v. Uganda merely invokes the Court’s earlier reasoning in the Wall Advisory Opinion in summary form).³² Just as its decisions on extraterritorial applicability constitute some of the main decisions by the Court on human rights law generally, so here a decision in this category is a landmark in the broader theme of the Court’s express use of the decisions of other courts and tribunals.

In a similar fashion, in the same two decisions, the Court provided authority for the extraterritorial application of the CRC, as with the Human Rights Committee and the ICCPR earlier, bolstering the position of the Committee on the Rights of the Child on this issue (although, by contrast, without referring to the latter Committee’s position on the issue).³³

Before the ICJ made its pronouncements on the topic, the position on the extraterritorial applicability of the term ‘jurisdiction’ when used in human rights treaties was limited to affirmation by the UN Human Rights Committee and the Committee on the Rights of the Child – whose decisions, although important and influential, are formally non-judicial and non-binding – and the European Commission and Court of Human Rights – whose decisions are necessarily specific to the ECHR and its Protocols even if often containing logic that is clearly transferable to equivalent provisions in other treaties. The extraterritorial applicability of the ICCPR and the CRC could be rejected by dissenting States on the grounds that it had not been affirmed by a body other than the Committees associated with the two instruments, that the position of those Committees were non-binding and that decisions made with respect to the European Convention on Human Rights were irrelevant.³⁴

After these ICJ cases, the positions of the Human Rights Committee and the Committee on the Rights of the Child with respect to the ICCPR and the CRC were no longer isolated and, moreover, had been endorsed by a body with formal judicial status, and in a multifaceted fashion that both affirmed the position as general proposition and applied it to the facts of two separate situations, Israel in Palestine and the DRC in Uganda (in the latter case in a binding judgment).

More broadly, the quantum of authoritative interpretation on the question of the extraterritorial applicability of the term ‘jurisdiction’ across international human rights treaties generally had become significantly greater, in that jurisprudence from specialist human rights bodies was joined by the pre-eminent, generalist Court.

The Court’s contribution (3): affirming the extraterritorial applicability of other treaties with free-standing obligations

As mentioned above, some treaties operate in a free-standing sense, in that they do not contain express provisions stipulating their general spatial field of application. Debates about this spatial field are concerned not with the meaning of an ambiguous term (as in the earlier contest over the meaning of ‘jurisdiction’) but, rather, on whether the lack of an express provision renders the treaties always applicable to States parties anywhere in the world, or whether some sort of spatial test for applicability should be read into them and, if so, what constitutes the limits of that test.

The Court has made an important contribution to these debates, through adopting two distinct approaches to extraterritorial applicability. First, the Court in effect read into treaties a concept of jurisdiction, which it then determined to apply extraterritorially. Secondly, the Court offered a more simple affirmation of extraterritorial applicability, without explaining the basis for this.

As indicated above, the Inter-American Commission on Human Rights had read a concept of ‘jurisdiction’ into the American Declaration on Human Rights (not a treaty), which did not contain an express reference to this word, as a way of affirming its extraterritorial applicability. This approach was taken up (without acknowledgement of its origins, as an idea, in the Commission’s decision about the Declaration) and applied by the ICJ in relation to the ICESCR in the Wall Advisory Opinion, the African Charter and the CRC Optional Protocol in DRC v. Uganda. All of these instruments were treated as if they contained the ‘jurisdiction’ trigger, as a way of affirming that they were capable of extraterritorial application on the basis of the performance of activity by the State which fell within the scope of this concept.³⁵ In the Wall Advisory Opinion, the Court mentions the positions of Israel and the Committee on Economic, Social and Cultural Rights on the question of the applicability of the ICESCR to Israel in the Palestinian territories.³⁶ Whereas it rejects Israel’s advocacy of inapplicability, in contrast to its discussion of the position of the Human Rights Committee in relation to the ICCPR, it does not expressly associate the position of the Committee on Economic, Social and Cultural Rights advocating applicability (either generally or in relation to Israel in the Palestinian territories in particular) with its own affirmation of this view.³⁷

Here it is a matter not, as earlier, of interpreting a treaty provision termed ‘jurisdiction’ as having an extraterritorial meaning, but, rather, of affirming the extraterritorial applicability of the obligations in the instrument by reading into it a concept for applicability called ‘jurisdiction’, which has an extraterritorial component. This takes (without acknowledgement) an approach adopted in one decision by a regional body in relation to one instrument, not at issue in the case before it, and treats it as relevant more generally to certain other human rights treaties that do not have an explicit concept of ‘jurisdiction’ triggering applicability.

A second approach to the extraterritorial scope of treaties with a free-standing conception of applicability provisions is simpler. It was adopted by the UK House of Lords (as it was called then) in the Roma Rights case of 2004 concerning the posting of UK immigration officials at Prague airport.³⁸ Lady Hale and Lord Steyn both assumed that the prohibition of discrimination on grounds of race in CERD applied extraterritorially, without recourse to a particular factual doctrine such as the exercise of ‘jurisdiction’, which had to be met in order for the obligations to be in play. ³⁹

The effect of the ICJ’s 1998 Order for provisional measures in the Georgia v. Russia case is to offer further support to this ‘free-standing’ approach to applicability. The Court stated that it:

The Court’s order called upon ‘[b]oth Parties, within South Ossetia and Abkhazia and adjacent areas in Georgia’ to take certain acts to comply with the Convention, a determination that assumed the extraterritorial application of CERD to Russian forces in Georgia.⁴¹

This decision offers a particular approach to understanding the extraterritorial application of those treaties such as the CERD with free-standing models of applicability not expressly qualified by jurisdiction: the absence of a restriction on applicability, whether of a general character, or specific to the particular obligations in the treaty at issue, should be taken to suggest that the provisions should apply. In other words, as far as the significance of treaty provisions is concerned, the enquiry on extraterritorial applicability depends on not establishing this in a positive sense, but, rather, establishing whether it has been ruled out negatively through restrictive provisions. Such an approach to treaties with free-standing provisions can be seen as offering a potential explanation for the approach adopted by the UK House of Lords in Roma Rights, and a general doctrine to be followed in relation to such treaties as an alternative to the approach of reading a concept of ‘jurisdiction’ into them.

The Court’s contribution (4): on the ‘exceptional’ nature of extraterritorial activity and its regulation by human rights law

However controversial and important extraterritorial State actions are, and however fundamental they may be in certain cases to the interests of the relevant States and those in the territories affected, taken as a whole they are exceptional when compared with the presence and activities of State authorities within their sovereign territories. Thus in the WallAdvisory Opinion the ICJ stated in relation to the ICCPR that ‘while the exercise of jurisdiction is primarily territorial, it may sometimes be exercised outside the State territory’.⁴² The Court went on to say that:

Similarly, in relation to the ICESCR, the Court stated that:

Here, then, the Court is being descriptive about the exercise of jurisdiction in the sense of a State presence (the particular activity performed by Israel at issue before it) reflecting the fact that States parties to the Covenant (taken as a whole) do not normally engage in this activity as a matter of fact outside their territory. These observations are significant because of how they echo an earlier statement made by the European Court of Human Rights, and how they have potentially a significantly different import, in terms of the implications for the scope of extraterritorial applicability, from an earlier statement by the Strasbourg Court.

In the Banković decision concerning the NATO bombing of Serbia in 1999, the European Court of Human Rights stated that jurisdiction is ‘essentially’ territorial, with extraterritorial jurisdiction subsisting only in ‘exceptional’ circumstances.⁴⁵ However, in this observation the Court seemed to suggest that somehow the ‘exceptional’ character of extraterritorial jurisdiction should be understood not only in a factual sense; it should also have purchase in attenuating the scope of the meaning of ‘jurisdiction’ in international human rights law, and should perform this function in an autonomous manner from the factual exceptionalism. The autonomous nature of this exceptionalism creates the possibility that even if a State is acting ‘exceptionally’ as a matter of fact outside its territory, such a situation might not fall within its ‘jurisdiction’ for the purposes of human rights law. In other words, only a subset of extraterritorial activity will be regulated by human rights law.

The dictum from Banković was affirmed at certain stages in the English courts of the Al-Skeini case concerning the UK’s military presence in Iraq, although by way of simple recitation only.⁴⁶ In the Strasbourg judgment in that case, the European Court of Human Rights stated:

This statement seems to suggest that, necessarily, human rights law does not apply to all the extraterritorial actions of States – even if States perform ‘acts…outside their territories’, such acts can only ‘constitute an exercise of jurisdiction within the meaning of Article 1’, that is to be regulated by the obligations in the treaty, ‘in exceptional cases’.

This doctrine of the ‘exceptional’ extraterritorial application of human rights obligations has only ever been affirmed in the context of the ECHR. Moreover, even in relation to that instrument it was absent from the case law before the Banković decision of 2001. Nonetheless, it appears to suggest a significantly different approach to ‘exceptionalism’ from that articulated by the ICJ in the Wall Advisory Opinion, which was issued after Banković. For the ICJ, exceptionalism was only an issue in terms of the frequency of extraterritorial State action; it was not also a doctrine to limit the circumstances when this action would be regulated by human rights law when it occurred.

The absence of an affirmation of the latter doctrine places the Wall Advisory Opinion alongside the decisions of other bodies such as the Inter-American Commission of Human Rights and the Human Rights Committee, supporting the absence of such a doctrine from human rights law generally and further marginalising the apparent affirmation of the doctrine in the context of the ECHR.

The Court’s contribution (5): whether human rights treaty obligations should apply to a State acting in territory not falling within the sovereign territory of another contracting party to the treaty

An idea has become associated with the ECHR, based on an interpretation of a dictum from the European Court of Human Rights in the aforementioned Banković decision, about the ‘legal space’ or ‘espace juridique’ of the Convention, which has fundamental consequences for the question of extraterritorial applicability. Although advanced and affirmed only with respect to the European Convention, as an idea it is transferrable to other human rights treaties.

This idea is as follows: a particular action taken by one State in the territory of another State would not be governed by the Convention obligations of the first State if the second State is not also a party to the Convention, even if in other respects the act in question meets the test for extraterritorial jurisdiction under the Convention (for instance the State exercises effective territorial control). Under this view, although the concept of ‘jurisdiction’ under the ECHR is not limited to a State’s own territory, the applicability of the treaty as a whole is limited to the overall territory of contracting States. In consequence, States acting outside the ‘territorial space’ of the ECHR are not bound by their obligations in that instrument, even if they are exercising effective control over territory and/or individuals. This is a severe limitation as far as the ECHR is concerned, since most of the world’s States, including some of the key sites of extraterritorial action by certain European States, fall outside the ‘legal space’ of the ECHR.

This concept, although articulated in relation to the ECHR, is of significance more broadly to situations where States act in territory in respect of which they lack title, and which does not form part of another State that is also bound by the same human rights obligations as they are. This would cover territory of a State that is not a party to the same human rights treaty and non-State territory that, necessarily, does not fall within the territory of any State bound by any human rights treaties at all. It would also cover territory of a State that is party to the same treaty but subject to different obligations under it, whether through reservations, declarations or a divergent position as far as additional instruments such as optional protocols to the treaty are concerned. This is not, then, a rejection of the extraterritorial application of human rights law in toto; it is a rejection of human rights norms that have not yet been universally accepted or accepted at least by a State with sovereignty (as title) over the territory concerned, even if they have been accepted by the foreign State acting in that territory.

The significance of this idea is illustrated by the following two examples of exclusions that would be effected by this limitation. First, no European State acting in Afghanistan, or taking action in the territorial waters of States and/or the high seas off the Horn of Africa with respect to so-called ‘piracy’, or taking migration-related action in the territorial waters of North African States and/or the high seas in the Mediterranean, would be bound by the ECHR. Secondly, no action by any State on the high seas, or off the coast of the Western Sahara (a non-State territory), whether piracy-or migration-related, is covered by any human rights treaty obligations whatsoever.

This sets up a two-tier system of human rights protection: States may act abroad in a manner that impacts on human rights, but such action is only regulated by human rights obligations if these had already been in operation in the territories in question. Such a system echoes legal distinctions operating in the colonial era in levels of civilisation and as between the metropolis and the colony as far as the level of rights protection is concerned. Indeed, with the ECHR the distinction in rights protection necessarily operates according to a European/non-European axis – Turkey in northern Cyprus: yes; that State and other European States in Iraq: no.

Whether or not such an exclusion actually operates with respect to the ECHR and its Protocols has been addressed in both case law and academic commentary.⁴⁸ Such discussion has included coverage of broader normative issues concerning whether the absence of such a limitation, and the consequent application of human rights standards that were not previously applicable in the territory, would constitute ‘human rights imperialism’ and also potentially risk, where it is co-applicable, adherence to certain norms of occupation law.

In DRC v. Uganda, the Court held that the nature of the extraterritorial action by the State at issue, Uganda, met the test for triggering the law of occupation. Applying Uganda’s human rights obligations was not capable of raising a ‘legal space’ problem as set out above, however, because the DRC was also a party to the treaties at issue. Similarly, in Georgia v. Russia, the Court was concerned with the extraterritorial application of a human rights treaty that was binding on both the State acting extraterritorially, and the State in whose territory the former State was acting. These two cases were equivalent, then, to the Strasbourg cases about Turkey in northern Cyprus: one State being bound by its obligations when acting in the territory of another State also a party to the treaty or treaties containing the obligations at issue. Everything was happening within the ‘legal space’ of the treaty or treaties.

In the Wall Advisory Opinion, however, the Court was considering the applicability of human rights treaties that were not already in operation in the particular sense that the territory – Palestine – did not itself constitute a State party to human rights treaties (a position that has since changed), nor was it regarded as forming part of the territory of another State party to such treaties. The situation was therefore, in this sense, outside the ‘legal space’ of these instruments. It might have been said, then, that to apply the treaty obligations to Israel in the Occupied Palestinian Territories would fall foul of a limitation on applicability to the ‘legal space’ of the treaties at issue. However, such a view was not expressed by the Court and the treaties were regarded as applicable to Israel, thereby necessarily rejecting the ‘legal space’ limitation idea in its entirety.

Conclusion

When the ICJ issued the Namibia Advisory Opinion in 1971, the development of international human rights treaty law, and its expert-body interpretation, was at a very early stage – the two global human rights Covenants, for example, had been adopted (in 1966) but were not yet in force (that happened in 1976).⁴⁹ The question of the extraterritorial application of this law had not been subject to any general expert determination. When that happened later, the ideas expressed by the Court can be clearly identified. Although, then, the Court did not itself pronounce upon international human rights treaty law for some time after Namibia, that opinion nonetheless deserves a central place in the canon of international human rights law jurisprudence, not only for the commonly acknowledged significance it has for UN law and the law of self-determination, but also because of this link with later expert-body determinations on the extraterritorial application of human rights law. Moreover, when the Court offered its own contribution on the latter subject to sit alongside the expert-body determinations, this had an important role in consolidating and supplementing a critical mass of authoritative interpretation on what was and remains the highly contested and fundamentally important question of whether human rights treaty obligations apply extraterritorially. In a few brief statements in three decisions, the Court bolstered the case for an affirmative answer to this question. It has done this in a manner that has widened the scope of the judicial and quasi-judicial conversation from an isolated, treaty-specific treatment by dedicated interpretation bodies on what is a common matter across the human rights treaty framework.

Introduction

The fragmentation of international law is a long-observed phenomenon that demonstrates uneven normative and institutional development and evolution in inter-State relations, with little or no hierarchical order or overall coherence. Separate legal regimes such as the international trade regime and the international regime to mitigate climate change have developed largely independently from one another, often instigated by non-identical groupings of States. Conflicts of norms between these regimes give rise to ‘post modern anxieties’ about disorder and uncertainty,¹ and in response, the United Nations International Law Commission (ILC), in a seminal study led by Martti Koskenniemi, advocates a toolbox of professional techniques for international lawyers.² These techniques seek first and foremost to ascertain the common intention of States parties to the relevant regimes in resolving normative conflicts. In doing so, the techniques promote adherence to sovereign concerns.

Yet even aside from the potential for large-scale conflicts between rules or rule-systems, the fragmented and diversified legal landscape and the plethora of legal regimes give rise to challenges of a more mundane character. Given that issues of global concern such as climate change, fisheries depletion and human rights do not fall neatly into one regime, there is a constant need to mediate and understand the interaction between regimes.³ Joint work programmes, the common advancement of ‘multi-sourced equivalent norms’⁴ and shared institutional practices are a routine feature of the implementation of international law. This interaction between regimes sometimes occurs with the full awareness and consent of States parties, but oftentimes it does not. For example, States sometimes allow secretariats of international organisations to enter into memoranda of understanding with other secretariats; at times, institutional co-operation exists without such arrangements. If regime interaction occurs without the apparent consent of States, what is the risk to sovereignty?

The situation is further complicated when one considers the growth of non-traditional legal regimes and ‘transnational law’ beyond the confines of the State. An example from forestry regulation illustrates this phenomenon. Forested areas are simultaneously governed by States for a range of uses including timber extraction and agricultural plantation; they also form part of complex and localised normative arrangements of indigenous and other communities. Such pluralism is destined to become even more complex. Imminent global attempts to reduce carbon emissions from deforestation and forest degradation (known as ‘REDD’ programmes) promise to provide public and private entities with opportunities to establish carbon markets, adding a layer of governance that is grounded on State participation and yet dependent on global and ‘de-nationalised’ authorities. The interaction between these areas of law provides additional challenges to notions of sovereignty. Can States retain control? Should they?

This chapter addresses the dilemma posed for sovereignty by regime interaction. The first part identifies the multiple meanings of ‘regime’. The term is useful in drawing attention to specialised areas of practice and institutional development, notwithstanding the risks that accompany such analysis.⁵ This part considers the influence of international inter-governmental organisations and non-governmental organisations (NGOs) in these arrangements. Such influence may even exceed the influence of States, especially for some privately developed ‘transnational regimes’.

The second part focuses on sovereignty and its demands. Traditional conceptions of sovereignty emphasise the full and independent authority of States to govern their citizens and their territory. When States ratify treaties and become members of legal regimes, the delegation of power is seen by some to be a diminution of sovereignty. Perhaps even more keenly felt is the impact on sovereignty of interacting regimes and this part examines examples of international organisations within one regime finding facts and drawing upon law from another regime. Examples from regimes relating to liberalised trade, climate change mitigation and fisheries protection are provided to demonstrate the current practice surrounding intersecting regimes. If such activities go beyond the implied powers of international organisations, sovereignty’s demand for State consent in situations of authority and control may go unmet.

The third part provides a normative argument for regime interaction that attenuates the concept of sovereignty to allow for the participation of international organisations and NGOs in regime interaction. It explores ways in which regime interaction satisfies the demands of sovereignty by ensuring legitimacy. Issues such as accountability, transparency and cross-regime scrutiny become important at both a practical and theoretical level. An account of sovereignty that allows international law to confront issues of global concern, even as those issues traverse multiple regimes with disparate (and sometimes non-existing) State membership and differing organisational structures, is a necessary part of an open system of international law.

A ‘Regimes’ of international laws and institutions

‘Regimes’ is a term that delineates professional specialisations, treaty and institutional arrangements and subject disciplines bounded by functional, teleological, organisational and geographical domains. The international trade regime, headed by the World Trade Organization (WTO);⁶ the climate change regime, led by the Conferences of Parties to the United Nations Framework Convention on Climate Change (UNFCCC);⁷ and the law of the sea regime, dominated by the United Nations Convention on the Law of the Sea,⁸ exemplify common descriptions of separate but connected areas of international law.

Such arrangements conform to the idea of regimes as ‘sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases’.⁹ This definition is a hybrid of terms deployed and developed within international law and international relations (IR) scholarship.¹⁰ In the latter context, ‘regime theory’ concentrates on normative developments by States (and more specifically, governments) within regimes. Similarly, a growing body of work on ‘regime complexes’¹¹ identifies how narrowly framed regimes devised by States are linked together to address set issues.

A similar preoccupation with the interests of States pervades the understanding of ‘regimes’ in international law. Early usage of the term ‘regimes’ by the International Court of Justice combined it with the adjective ‘self-contained’, to emphasise a system of legal prescriptions (relating to diplomatic law) that contained its own rules on the consequences of breach.¹² The ILC now prefers the term ‘special regimes’ in its conceptualisation of the operation of lex specialis in the context of resolving conflicts of norms arising from the fragmentation and diversification of international law.¹³

Whilst the ILC’s use of the term ‘special regimes’ generally reiterates the centrality of States in regime formation and operation, the third of its three offered definitions hints at a broader conception.¹⁴ If ‘regimes’ are defined to include bodies of ‘functional specialization or teleological orientation’, such as environmental law or trade law,¹⁵ arguably a wide number of actors besides States are included in the definition. Specialisation connotes an expertise, and possibly a ‘professional mindset’,¹⁶ most commonly belonging to technical experts operating within secretariats but also within tribunals, NGOs and other bodies. Understanding the contribution made by these actors to regimes underpins IR scholarship on ‘epistemic communities’.¹⁷ It is also part of the broader realisation that the conflict between regimes in international law reflects wider societal conflicts.¹⁸

Two consequences relevant to the current chapter flow from this broad understanding of regimes. First, the enhanced recognition of the role of non-State actors – especially international inter-governmental organisations and NGOs – in the formation and operation of regimes¹⁹ displaces sovereign States as the sole drivers of regime interaction. Secondly, accounting more clearly for institutions allows for a greater understanding of the changing nature of sovereignty, not only when such institutions facilitate compliance with international law,²⁰ but also when they facilitate regime interaction.

Institutions are central in efforts to promote interaction within and between regimes. A surprising array of examples document intra-regime co-operation. In the human rights field, for example, NGOs have moved far beyond the original expectations which encapsulated their formal consultative status in order to forge normative development and links between UN human rights bodies.²¹ In the environmental field, institutional interplay accompanies a great deal of the growth in norms²² (otherwise termed ‘treaty congestion’).²³ The trade regime,²⁴ private property rights and regulation,²⁵ indigenous peoples’ rights²⁶ and the protection of cultural expression²⁷ have all undergone further specialisation and internal fragmentation.

Aside from intra-regime interaction, a plethora of examples document the growing normative overlap and institutional co-operation between regimes. These are too numerous to list in the current chapter,²⁸ but notable analyses are available on the links between, for instance, human rights and humanitarian intervention,²⁹ climate change and human rights,³⁰ fisheries agreements and trade law,³¹ and biodiversity and forests.³² These regimes are supported by different (and differently empowered)³³ international organisations, have different (or, at the very least, non-identical) members and came into being with laws that were developed at different times and with different functions. Whilst the most obvious clashes between regimes occur during the settlement of disputes,³⁴ it is clear that the relations between these regimes extend far beyond the headline act of a tribunal forced to identify priority in conflicting norms.³⁵ Their on-going interactions are often productive for international law and its beneficiaries,³⁶ yet also present challenges for sovereignty.

The growth of regimes that are detached from sovereign States (but which still conform to the definition of regimes offered at the start of this part³⁷) must also be noted. Certain regimes, such as the indigenous legal arrangements relating to the forest, or ‘transnational regimes’ motivated by sectoral differentiation such as the law of the internet, are not dependent on States and may even be antagonistic to their interests.³⁸ Clearly, the interaction of regimes in these contexts gives rise to particular challenges for sovereignty, especially when private legal regimes seek a global, unifying reach that mirrors aspects of constitutionalism.³⁹

The ILC Study Group noted the growth in ‘quasi-autonomous normative sources’ arising at the international level,⁴⁰ and the complexity associated with non-governmental participants and other actors.⁴¹ While its recommendations were addressed to States and accorded with a traditional conception of sovereignty (whereby situations of conflict or interpretation were to be resolved by seeking to ascertain the intentions of States parties), it also concluded its pioneering study by calling for further work to be done on ‘the notion and operation of “regimes”’.⁴² This wider task animates the present chapter, and the next part considers in greater depth the impact on sovereignty wrought by regime interaction.

B Sovereignty and its demands

The concept of sovereignty, though contested,⁴³ contains a ‘presumption of full governmental authority over a polity and territory’.⁴⁴ Sovereignty has historically evolved to attach only to States. Regimes are made up of more than just States: as set out above, they include institutions and those actors possessing relevant functional expertise. Though these non-State actors are central to regime interaction, they do not possess sovereignty. Even less relevant to them is sovereign equality, especially considering the wildly divergent concentrations of power and interests they represent.

Modern sovereignty is currently said to be in crisis, with national authority struggling to retain control over challenges presented by an increased trans-boundary movement of people, capital, information and goods.⁴⁵ The establishment of regimes, in part to address the challenges of globalisation, is argued to be a specific threat to sovereignty, given the delegation of power from States to collective agreements.⁴⁶ The counter-argument is that States may (and do) withdraw from regimes, and thus retain their sovereignty in the face of new and emerging international law. In addition, sovereignty may be reinforced by the establishment of regimes that enable States to achieve long-term aims that would otherwise be elusive.⁴⁷

When regimes interact, sovereignty is challenged in a related but slightly different way. At its heart, the challenges posed to sovereignty by regime interaction go to a loss of authority and control by States. If States have ratified the agreements that underpin the interacting regimes, or have otherwise consented to the interaction, sovereignty is not unduly affected. But if the States have not, even impliedly, permitted international secretariats to share information, work together, assist in the drafting of new rules, interpret norms or otherwise be influenced by other international regimes, threats to sovereignty may be said to arise. Similar pressures arise when international tribunals within particular regimes take into account laws and material from other regimes in their decisions.

The following examples of regime interaction illustrate the variability of its impacts on sovereignty. Regime interaction apparently most reverential to sovereignty arises if States are members of the relevant regimes before they interact. This situation is promoted by some interpretations of Article 31(3)(c) of the Vienna Convention on Law of Treaties (VCLT),⁴⁸ which provides that a treaty may be interpreted with reference to:

Though not a mainstream view, a notorious WTO Panel has ruled that Article 31(3)(c) requires overlapping membership between the treaty being interpreted and the treaty (or ‘relevant rules’) that is said to form the context.⁴⁹ According to that Panel, the WTO legal agreements may only be interpreted with reference to other rules of international law, if all WTO members have signed up to those rules. If there is explicit consent by all parties to both sets of regimes, interaction does not unduly affect States parties’ rights and duties, and the traditional notion of sovereignty appears to prevail.⁵⁰ Yet, like many arguments surrounding sovereignty, the real question is ‘whose sovereignty?’⁵¹ On one view, sovereignty is threatened rather than preserved by a rigid prescription of parallel membership. At least notionally, the requirement that regimes have common membership before they share norms grants those States which are not members of the relevant regimes a power of veto over the evolution of international law.⁵²

A second example also demonstrates apparent fidelity to sovereignty in regime interaction. States often agree that regimes will influence one another, even if they are not parties to all relevant regimes. Rules that allow observer status to international organisations – in negotiations or on-going committee work – are a common feature in bodies such as the WTO, the Food and Agriculture Organisation (FAO) and the Conference of the Parties to the Convention on the International Trade in Endangered Species (CITES).⁵³ Common membership by States is not a prerequisite to regime interaction, but State consent is.

A third set of examples of regime interaction has a less certain link with State consent, and therefore with sovereignty. In one example, the WTO Appellate Body referred to the law of international environmental regimes when interpreting WTO norms in the US–Shrimp dispute, notwithstanding a lack of parallel membership.⁵⁴ Its secretariat also issued a directive for the submission of amicus briefs during highly controversial asbestos litigation between Canada and the European Union – an act that foreshadowed the receipt of information from a range of sources, including NGOs from public health regimes.⁵⁵ In determining threats to marine species, the CITES secretariat has collaborated with the FAO on scientific and research data, and ultimately entered into a memorandum of understanding on how CITES may protect such species. Finally, the World Bank’s Forest Carbon Partnership Facility has forged links with a range of States and non-State entities to develop capacity in forestry governance, despite the absence of a multilateral forestry convention. These activities are part of attempts to establish programmes to reduce emissions from deforestation and forest degradation (the ‘REDD’ programmes identified above) through incentives paid by States and funding bodies to particular governments.⁵⁶ The World Bank’s efforts can be viewed as part of an ‘assemblage’ that includes local forest dwelling and indigenous communities, merchant banks, agricultural companies, environmental NGOs, satellite remote-sensing experts and State regulators.⁵⁷

These examples may satisfy the direct demands of sovereignty if the relevant international organisations are acting within their powers. According to international law, as developed from the early Reparations case, international organisations have international legal personality and certain powers may be implied.⁵⁸ It may be argued that in situations of legal fragmentation, international inter-governmental organisations impliedly possess relevant powers to interact with other regimes in certain circumstances where such interaction is functionally necessary (just as the United Nations was implied to possess the power to bring an international claim for reparations on behalf of itself and its slain agent). As such, international organisations acting independently of their members in particular circumstances of legal fragmentation do not threaten the sovereignty of their members.

Such a construction, however, does not conform to the current majority view within international institutional law. The International Court of Justice has held that, in construing the implied powers of international organisations, regard will be had to what is functionally necessary given that international organisations have specific specialisations: according to this construction, the World Health Organisation was held not to have implied powers to request an advisory opinion on the legality of nuclear weapons, given that this remained the realm of the Security Council.⁵⁹ On this view, international competences are parcelled up appropriately as between international organisations, and it will not be necessary for them to interact even as new global issues traversing multiple regimes arise (or at least, if such issues do arise, States parties need to directly consent to inter-regime competences in addressing them).

Apart from the uncertainties surrounding the legal capacity of institutions acting independently from States in situations of regime interaction, threats to sovereignty arise from the enhanced role of experts. These experts are a necessary part of regime interaction (when, for example, data on the decline of fish stocks is sought by the FAO from the CITES secretariat; or when satellite technology and climate modelling is needed by the World Bank to determine REDD recipients). Yet managerial procedures and the resultant decision-making by the privileged and isolated few who are proficient in modes of exchanges between regimes may be part of a wider phenomenon of what has been called a ‘technicalisation’ of international affairs.⁶⁰ Significant risks may arise from allowing experts within regimes greater latitude in regime interplay. The resultant regime interaction may suggest a rational and coherent resolution of global problems, but in fact may be reinforcing a dominant set of preferences that simply further the agenda of particular regimes.⁶¹ While the interests of some powerful States may well be satisfied by this interaction, the interests – and sovereignty – of others are clearly strained.⁶² This seems to replay the historical engagement between power and technology that established early forms of sovereignty and territory through mapping and other techniques.⁶³

Yet amongst all these pressures on established notions of sovereignty, it must be recognised that the expertise and interests held by non-State actors are often necessary to confront global issues that cross over many regimes. As James Crawford notes, whilst States maintain some monopolies, such as the collective capacity to determine peremptory norms, ‘we now reject other claims to State monopoly formerly associated with the doctrine of sovereignty, in particular the monopoly of rights and the monopoly of representation’.⁶⁴ Moreover, even if the interests pursued by non-State actors are not considered representative of a citizen majority, they may provide useful perspectives for deliberation and debate.⁶⁵ Affected stakeholders are often in the best position to review information.⁶⁶ Open participation leads to better implementation of rules,⁶⁷ and promotes learning, information-exchange, peer review and cross-forum experimentation across a range of international organisations.⁶⁸ The challenge is therefore to identify how the demands of sovereignty can be met through the participation of a multitude of actors besides States in regime interaction.

C How regime interaction can satisfy the demands of sovereignty

This chapter has pointed to the involvement of a range of actors in global issues that traverse the boundaries of multiple international regimes. These include non-State actors advancing divergent interests and expertise in subject areas such as public health (in the case of the amicus briefs at the WTO), marine species preservation (in the case of the CITES secretariat), forest subsistence (in the case of indigenous communities) and even wealth maximisation (in the case of merchant banks involved in REDD projects). Their involvement demonstrates that international law is not simply an inter-State system but instead can be viewed as a multiplicity of State and non-State actors participating in a range of globalising processes.⁶⁹

In some examples, States explicitly or impliedly consent to regime interaction, thus satisfying a pure, positivist conception of sovereignty. But in others, non-State actors appear to be participating independently of the wishes of sovereign States. When these actors shape the production of knowledge, determine facts and draw upon law, they join States parties in controlling the intersections between regimes and their outcomes. Can the demands of sovereignty be satisfied in these situations? This part argues in the affirmative, by setting out the necessary legal conditions for international law to address issues of real complexity that cover multiple fields of functional and professional specialisation whilst retaining legitimacy.

Without direct consent, sovereignty can be satisfied by determining the representative or deliberative credentials of non-State actors according to known public law traditions for assessing accountability.⁷⁰ The assessment differs as between international inter-governmental organisations and NGOs. The substance and mode of development of the relevant intersecting norms will also determine the legitimacy of regime interaction. There will be times when legitimacy is not satisfied and it will not be appropriate for international organisations and NGOs to control the interaction between regimes, as set out below.

For international organisations mediating the boundaries between regimes, there is a constant and continuous need for inter-regime scrutiny, not just of the relevant norms but also of the actors conveying those norms. For example, when the CITES secretariat collaborates with the FAO about the status of fish stocks, its recommendations to list species will be subject to a vote by CITES parties.⁷¹ When a WTO Panel draws upon norms developed by international standard-setting bodies, it must determine that the relevant body was open to all WTO members.⁷² There are examples when international organisations will determine that the requisite standards for regime interaction are not met. Consider, for example, the World Health Organisation’s decision to restrict the involvement of tobacco lobbies in the development of the Framework Convention on Tobacco Control: whilst those lobbies represent ‘affected stakeholders’, their lack of open, transparent and ethical practices were grounds to deny them participation.⁷³

This legal framework for regime interaction posits a kind of gatekeeper role for relevant international organisations to use norms that are exogenous to their own regime. International organisations are empowered to have regard to whether there is a high degree of international consensus to those norms. This may include inquiries into whether the norm has been agreed by a range of developing countries as well as developed countries. The substance of the norm will also dictate its relevance: for example, where norms developed by transnational regimes exhibit a ‘tunnel vision’ that disregards broader questions of public interest more commonly absorbed in the norms of national legal systems, this may lessen its relevance.⁷⁴ Moreover, whether the norm was itself developed in an open and accessible way is relevant in a decision to accord it influence.⁷⁵

The gatekeeper role of international organisations also requires them to assess the deliberative credentials of NGOs wishing to influence regime interaction. Such assessment will have regard to an NGO’s relevant functions, constituencies and intended beneficiaries and also ask whether it operates in an open, accessible, transparent and participatory way.⁷⁶ Disclosure of funding, as required by some but not all international organisations, would seem necessary in this process.⁷⁷ Private bodies that seek to accredit NGOs⁷⁸ can provide evidence of good practice, in a tantalising example of sovereignty being strengthened by non-State processes.

This suggestion of a mediating role for international organisations accords with sociological theories of Gunter Teubner and others who support polycentric constitutionalism, where State-based norm-generative processes are supplemented and sometimes supplanted by processes within particular regimes.⁷⁹ As has been observed within those theories, the State continues to play an important role in such processes.⁸⁰ Sovereignty remains important even if it is somewhat hidden under layers of other legal – or even constitutionalising – activities. However, sovereignty may be said to rise to the surface in some particular situations of normative conflict. For example, when intersecting regimes involve indigenous norms, the resulting clashes between the social embeddedness of legal systems of indigenous societies and the formal law of modern international regimes are not resolvable through general conflict rules.⁸¹ Instead, institutionalised and proceduralised protection of the basic rights of those groups that are otherwise marginalised is more appropriate. In mediating regime interaction in REDD policies, for example, the inclusion of the interests of indigenous and forest-dwelling communities must, at the very least, require prior informed consent and benefit-sharing. While such guarantees are beginning to be located in international regimes,⁸² the fulfilment of such rights for indigenous peoples often depends once again on laws and processes within sovereign States.

These arguments for a legal framework of regime interaction seek to safeguard an attenuated form of sovereignty. The framework prioritises administrative law-type procedures of openness, transparency and reason-giving,⁸³ although these procedures operate at the level of regimes rather than within internal regulatory agencies.⁸⁴ The emphasis on inclusivity in situations of polycontextuality also follows existing literature on transnational governance, which rests an ideal of democratic legitimacy on the involvement of a broad sphere of actors.⁸⁵ An extension of these ideas could even found a renewed set of sovereign responsibilities, which require States to be other-regarding in their dealings with intersecting regimes.⁸⁶ The promotion of structures of accountability for States and non-State actors is necessary within an enriched theory of sovereignty that allows international law to better address global complexity.

Conclusion

While noting the stability and continuity of sovereignty as a key notion of international law, James Crawford also recognises that in times of vast political change, international law will change. He notes, ‘[t]he difficulty is to envision appropriate forms of change, and at the same time to hold to those aspects of international law which embody the stable outcomes of the interaction between peoples, societies and their governments over many years’.⁸⁷ This chapter demonstrates that the modern phenomenon of fragmentation, which has seen international law develop into myriad regimes of different specialisations, norms, memberships and scope, leads to challenges for sovereignty. Global problems do not fall neatly into existing regimes, and international organisations and other actors must often work together, or at least concurrently, on global issues. If sovereignty demands that the consent of States underlies the flow of norms and the shaping of knowledge between regimes, such activities cannot be accounted for. Nor can a purely positivist conception of sovereignty account for situations of normative pluralism when the relevant intersecting regimes include private transnational arrangements, or indigenous systems, some of which have developed separately from, or specifically without, national support.

This chapter has argued that these challenges to sovereignty can be met by structures of accountability that ensure the accessibility and participation of a range of State and non-State actors. Such a system builds on already established roles of international organisations, and provides them with guidance in mediating the norms and practices of exogenous regimes. It also acknowledges situations where participation is legitimately denied, if international organisations and NGOs fail to demonstrate requisite credentials and credibility. Furthermore, for special situations of indigenous systems, substantive protections may also be necessary. In current and emerging situations of regime interplay, including between forestry governance and carbon markets, health and trade and fisheries management and conservation, State sovereignty may co-exist, and even be strengthened, by such arrangements. The interaction of regimes in situations of legal fragmentation, if based on an open, but rigorous, conception of membership and participation, can ensure the viability and application of international law to the issues of our day.

Introduction

In the last decade, controversy has arisen regarding the compatibility of investment protection treaties and the ICSID Convention with national constitutions and State sovereignty. The focus of concerns has been the alleged lack of equality, transparency, predictability and accountability of investor–State arbitration under those treaties.¹ Horacio Rosatti, former attorney general of Argentina, was among the first to complain in 2003, when starting to defend Argentina from the avalanche of investment treaty claims brought by investors aggrieved by Argentina’s 2002 measures to fight its economic crisis.²

Many more similar comments of unease followed suit in Argentina, including a book by the judge of the Supreme Court, Carlos Fayt.³ Draft laws were prepared by Argentine MPs to declare bilateral investment treaties (BITs) unconstitutional.⁴ Further, while Colombian and Bolivian courts heard and rejected constitutional challenges against investment treaties,⁵ in Ecuador some BITs were declared unconstitutional and others are still under review in Ecuador.⁶ In Canada, NAFTA Chapter 11 investment protections were also attacked as unconstitutional.⁷ Australia announced in 2011 that it would no longer include investor–State arbitration in its trade agreements, given its impact on State sovereignty.⁸ Recently, a columnist of the UK newspaper The Guardian mounted a furious attack on the investment protection chapter of the EU–US Transatlantic Trade and Investment Partnership, which is being negotiated, because it ‘would let rapacious companies subvert our laws, rights and national sovereignty’ and ‘kill regulations protecting people and the living planet’.⁹ Professor Martti Koskenniemi has also argued that this agreement is ‘a transfer of power from public authorities to an arbitration body, where a handful of people would be able to rule whether a country can enact a law or not and how the law must be interpreted’.¹⁰

The complaints have often been tainted by ideological opinions and political interests. Disapproval of investment treaties by States has frequently been a reaction to being sued under such treaties. The opposition to open market policies may also have influenced the doctrinal charge against the investment treaty regime. Thus, the critics have in turn been attacked for echoing prejudice and preconception, or at least an overstated and one-sided focus on the shortcomings of investment treaty arbitration, under the banner of the system’s ‘legitimacy crisis’, rather than engaging in more fine-grained analysis.¹¹ Empirical research, in turn, has shown (arguably) that States often prevail in investment treaty cases, so that the concern that investment treaties unduly constrain sovereignty and regulatory action may be somewhat exaggerated.¹²

There is no intention here to join either side of the debate, but to suggest that its mere existence should give pause for thought. Similar legitimacy issues have arisen in relation to other areas of international law and other international norm-generation institutions, like the WTO, the free trade provisions of the NAFTA and the international criminal courts.¹³ Monroe Leigh’s contention that due-process concerns generated by some of the decisions of the existing war crimes tribunals indicated the need ‘to commence a campaign to add a Bill of Rights to the UN Charter’¹⁴ is reminiscent of the familiar debate on the need to incorporate human rights protections in European Community law. Hence, ‘critical transnational constitutional crises’¹⁵ are not unheard of.

Two precedents of legitimacy crises will be reviewed here: the debate in US law in the 1950s and ’60s on the constitutionality of human rights’ treaties in the context of the civil rights movement; and the constitutionality problems linked to the supremacy of European Community (EC) law in EC Member States. The US controversy resulted in the non-ratification by the US of human rights’ treaties, and still today international law has a somewhat precarious status in the US legal system. Conversely, the EC debate resulted in the reinforcement of the EC system through dialogue and cross-fertilisation between national courts and the European Court of Justice (ECJ).

The suggestion in this chapter is that the investment treaty regime may learn some lessons from these crises. Before delving further into them, however, a brief explanation of the framework for the analysis is needed.

The Exit and Voice dichotomy, and James Crawford’s quest for a more democratic international law

The disparity of approaches to an international regime’s legitimacy crisis may be explained by the dichotomy between ‘Exit’ and ‘Voice’, used by Joseph Weiler to explain some of the dynamics in the EC legal order: ‘Exit is the mechanism of organizational abandonment in the face of unsatisfactory performance. Voice is the mechanism of intraorganizational correction and recuperation.’¹⁶ Thus, the legitimacy and constitutionality problems of international regimes may lead to opposite forces: withdrawal from the system (Exit) or demand for more participation (Voice). The greater the opportunities for Voice, the less the tendency for Exit.

In investment arbitration Exit has already appeared in the form of denunciation of the ICSID Convention¹⁷ and termination of some BITs.¹⁸ Voice too has been felt in the amendment of model investment treaties,¹⁹ the issuance of biding interpretations of their provisions²⁰ and the participation of States as non-disputing parties in some cases. But the question here is whether the dynamics of Voice may also be heard on a day-to-day basis in the case law of investment treaty tribunals, in the way they integrate national legal concepts and interact with domestic courts. If so, the tendency for Exit may be mitigated.

Inspiration is drawn, as ever, from James Crawford, my esteemed professor and mentor, an exceptional man and friend who has made international law and to whom this modest contribution is dedicated. Now that he is retiring from his chair as Whewell Professor of International Law at the University of Cambridge, I want to recall his inaugural lecture back in 1993, entitled ‘Democracy in International Law’, which I had the pleasure to attend and which influenced my PhD thesis on the interaction between international law and national constitutions, supervised by him.²¹ In that lecture he addressed a number of facets of the relationship between international law and democratic principles. One of his arguments was to question the continuing acceptability of the rule of international law which provides that, except for treaties entered into in manifest violation of a rule of constitutional law of fundamental importance, national constitutional standards do not affect the international validity of international commitments and obligations.²² In his lecture James referred to this rule as one of the ‘deeply undemocratic features of classical international law’.²³

No doubt the traditional rule of irrelevance of domestic law is required at a practical level, for international law to be able to function as a legal system binding its subjects, the States. However, at a more conceptual level this paradigm may not be fit for the increasing overlap between international and national constitutional law. Hence in 1997 James wrote as follows:

The demands of national constitutions cannot be ignored if developments in international law, notably its growing concern with the relationship between the State and the individual, are to be accepted. Some fundamental principles of national constitutions may be externalised and thus condition the development of international law. As public power is exercised and reviewed internationally, and international law is in many domains reconceived as a system of public law, constitutional principles may operate as constraints on international or supranational action, thereby reinforcing its legitimacy. If these dynamics appear, then Voice prevails over Exit. Conversely, exaggerated criticism leads to Exit, which represents the defeat of the fruitful interaction between international law and national law.

The risks of Exit: international law in US civil rights litigation

Writing in 1948, Paul Sayre criticised the Supreme Court landmark decision in Shelley v. Kraemer (1948)²⁵ because it had neglected to refer to the US obligations under the UN Charter as a basis for refusing to judicially enforce a racially restrictive covenant relating to private property. He added that the UN Charter ‘is now not only part of our constitution, but by our constitutional act we are part of the United Nations…we are morally and legally bound to give them [the Charter’s provisions] all full effect all the time’.²⁶ These were the early days of the American civil rights movement, in which civil liberties groups filed suits in both state and federal courts citing the Universal Declaration of Human Rights and Articles 55 and 56 of the UN Charter to challenge racial discrimination.²⁷ According to these human rights clauses of the Charter, each member pledges itself to promote, and to take action for the achievement of, ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.

Sayre’s contention seemed to find immediate support in two judicial decisions. In Oyama v. California (1948), the Supreme Court found that the California Alien Land Law, as applied to the case, deprived the applicant of the equal protection by discriminating against citizens of Japanese origin.²⁸ The opinion did not reach the question of constitutionality of the Law, nor did it cite the UN Charter. However, two separate concurring opinions, in which four of the justices joined, not only mentioned the Charter but would have struck down the Law partially as infringing the international obligations there assumed.²⁹ These arguments were extensively relied on by the Oregon Supreme Court in Namba v. McCourt (1949).³⁰ In this decision, the Oregon Alien Land Law was held unconstitutional as racially discriminatory in violation of the equal protection clause of the Fourteenth Amendment, interpreted in the light of the UN Charter human rights provisions.³¹

This initial trend was to be halted by the landmark 1952 decision of the California Supreme Court in Sei Fujii v. State (1952).³² The case concerned a challenge by a Japanese resident in California against the validity of the California Alien Land Law, which discriminated against Japanese landowners. It was alleged that the Law was racially discriminatory and that it violated Articles 1, 55 and 56 of the United Nations Charter, as well as the equal protection clause of the Fourteenth Amendment. The California District Court of Appeal held that the constitutional arguments would fail on the grounds of the authority of Supreme Court case law upholding the constitutionality of alien land laws, and went on to strike down the Law as infringing the human rights provisions of the UN Charter.³³

This decision was followed by vivid controversy and widespread criticism, generated in particular by those that sought to prevent bringing an end to racial segregation by international agreement.³⁴ Together with the US signature of the Convention on the Prevention and Punishment of Genocide in 1948,³⁵ concern arose that international commitments might undermine State sovereignty, national autonomy and the US form of government. This set off a campaign to limit the treaty power, culminating in the proposed Bricker Amendment, which would have made all treaties non-self-executing.³⁶

In response to all this debate, the California Supreme Court affirmed the lower court’s decision solely on constitutional grounds, and held the human rights clauses of the UN Charter to be non-self-executing.³⁷ The Court found the Charter provisions to be vague and lacking the intent necessary to make them self-executing. The examination of the position taken by the US negotiators, and by the political branches in ratifying the Charter, led also to the conclusion that the US had not undertaken an immediate obligation to supersede conflicting national legislation. Thus, the Court held that the provisions Charter’s invoked were not intended to become rules of law for the judiciary to apply.³⁸

The debate around the self-executing doctrine generated by the Fujii case and the Bricker Amendment exerted very considerable influence thereafter. The US did not ratify any major human rights treaty until 1986. Since then it has ratified the Genocide Convention in 1986, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1990, the International Covenant on Civil and Political Rights in 1992 and the Convention of the Elimination of All Forms of Racial Discrimination in 1994. However, ratification has been subjected to comprehensive reservations which raise questions about the seriousness of the US’s commitment, and to declarations establishing that the treaties are non-self-executing.

The constitutionality of these declarations is doubtful because they prevent judges from applying treaty law, for which they are empowered by the Constitution, and which contradicts the purpose of the Supremacy Clause.³⁹ In any case, this episode evidences the risks linked to Exit. As a result of the Fujii case and the ensuing controversy, courts revitalised and expanded the self-executing treaty doctrine to hold a series of human rights treaties to be non-self-executing.⁴⁰ International law was ousted from the civil rights litigation, and as a consequence it probably took longer for US racial segregation to end, even if the UN Charter may have had an indirect effect on the civil rights jurisprudence.⁴¹ More generally, courts discovered the use of the doctrine of non-self-executing treaties to circumvent the consequences that the enforcement of treaty obligations may have upon internal law.

This is why multilateral treaties, with much greater impact in internal law than bilateral treaties, are almost always regarded as non-self-executing in US law.⁴² Whenever the position of the US government is opposed to the enforcement of a treaty provision, or the latter may bring the court in conflict with, or embarrass, the political branches, courts may find a way out by determining the provisions of a treaty non-self-executing. In these situations courts avoid deciding substantive international law issues that cases may raise, so that the non-self-executing doctrine serves the same purpose as the ‘political question’ doctrine. The controlling rationale for both is the courts’ understanding of the demands of the constitutional separation of powers: the need to preserve the authority of the political organs in matters which have been considered particularly within their competence.⁴³

The potential and fruitful interaction between international law and national law, including constitutional law, came out unfulfilled. One example is that while an increasing number of States favour the normativity of international law, notably human rights law, by resorting to it in interpreting ‘open – textured’ provisions of the national constitution, this trend is much less perceptible in the United States. In particular, the Supreme Court has shown considerable disinclination towards using international instruments as a guiding principle for constitutional interpretation.

In Stanford v. Kentucky (1989), for instance, the question of the relevance of international and comparative law for constitutional interpretation was raised before the Court in a case concerning the imposition of capital punishment upon juveniles aged sixteen and seventeen. The Supreme Court examined whether the punishment was contrary to ‘evolving standards of decency that mark the progress of a maturing society’, the criterion for the determination of the infringement of the Eighth Amendment’s prohibition against cruel and usual punishment. The majority’s opinion, written by Justice Scalia, held that in examining the ‘evolving standard of decency’ only US conceptions of decency were relevant, and refused to take into consideration comparative and international law practice in connection with the death penalty.⁴⁴

The virtues of Voice: constitutional dialogues in the EC legal order

It is well known that EC law has evolved ‘into a vertically-integrated legal regime conferring judicially enforceable rights and obligations on all legal persons and entities, public and private, within EC territory’.⁴⁵ This evolution was not explicitly envisaged by the founding treaties, but resulted, first and foremost, from a series of landmark decisions of the ECJ starting in the 1960s which established the doctrines of direct effect and supremacy of EC law in national legal systems, pre-emption, interpretation of national law in conformity with EC law, and the doctrine of governmental liability for failure to properly implement EC law.⁴⁶

The deepening legal integration involved the need for national legal orders to come to terms with the vast constitutional implications of European Community integration. Recognition of the Community order meant the introduction of EC law among the sources of national law, with primacy over them; the transfer of law-making powers, policy determination authority and executive competences to Community institutions in ever-expanding fields; as well as, in many cases, the reinforcement of the judicial branch by introducing the principle of judicial review of the consistency of national legislation with EC law.

The alteration of the national constitutional structures and their adaptation to the EC legal order was achieved primarily by constitutional interpretation, effectuated by the supreme and constitutional courts of the Member States.⁴⁷ In some cases, constitutions contained provisions permitting limitations of sovereignty and transfers of sovereign powers to international organisations.⁴⁸ In other cases, such general clauses on membership of international organisations were adopted with the prospect of the country’s participation or accession to the EC.⁴⁹ These rules were interpreted extensively so as to legitimise the constitutional adjustments required by the EC legal order. In addition, some countries inserted stipulations in their constitutions giving specific constitutional basis to European integration, notably in France and Germany in view of the ratification of the Maastricht Treaty (1992).⁵⁰

However, the acceptance of the doctrines of EC legal integration and their consequences within national legal orders was not unconditional, nor did it necessarily comprise the endorsement of the ECJ’s rationale for the constitutionalisation of the EC legal order. In particular, the highest courts in the Member States did not seem to subscribe to the legal basis for EC supremacy offered by the ECJ – namely, the EC as a new and autonomous legal system prevailing over national law of its own force. Instead they insisted on a national constitutional basis⁵¹ or, exceptionally, an international law basis,⁵² for EC supremacy. Further, some supreme or constitutional courts specified that the constitutional provisions which mediate in the relationship between EC law and national law are subordinated to other constitutional provisions. In so doing, they established constitutional limits on European integration as well as reserved for them the ultimate authority to control the legality of EC law.

Thus, for instance, accepting supremacy of EC law without a guarantee that this supreme law would not violate the essential constitutional principles and fundamental rights enshrined in the constitution of a Member State would have been practically impossible. This was made particularly clear in Italy and Germany, given that in these countries human rights enjoy constitutional protection, post-war national identity is to a large extent founded on and shaped by the Constitution, and the constitutional legality is safeguarded by specialised constitutional courts.

In Italy, for example, the EC legal order was subject to the so-called ‘counter-limits’ (controlimiti) – that is, EC law’s respect for the fundamental principles of the constitutional system and the inalienable rights of individuals. The correlation in the jurisprudence of the Italian Constitutional Court between constitutional openness to European integration and its constitutional limitations arose for example in the Frontini case (1973).⁵³ Here the Italian Constitutional Court affirmed that the Constitution authorised restrictions of the legislative power by effect of EC law, but if ever EC law led to ‘unacceptable power to violate the fundamental principles’ of the constitutional order ‘or the inalienable rights of man’ ‘the guarantee would always be assured that this Court would control the continuing compatibility of the Treaty with the above-mentioned fundamental principles’.⁵⁴

Likewise, in its Granital decision (1984), the Constitutional Court recognised the immediate applicability and superiority of Community law over conflicting Italian legislation but also affirmed that ‘the law implementing the Treaty could be subject to review by this Court with regard to the basic principles of the municipal legal order and the inalienable rights of man’.⁵⁵

In the Fragd decision (1989) the Constitutional Court declared itself competent ‘to verify whether or not a treaty norm, as interpreted and applied by the institutions and organs of the EEC, is in conflict with the fundamental principles of the Italian Constitution or violates the inalienable rights of man…Such a conflict, whilst being highly unlikely, could still happen.’⁵⁶

In Germany, in the famous Solange I decision (1974)⁵⁷ the Constitutional Court held that the German constitutional openness to the EC had to ‘be understood in the overall context of the Constitution’, and did not consent to ‘amending the basic structure of the Constitution, which forms the basis of its identity’. The Constitutional Court admitted that basic rights could be guaranteed on multiple levels but that, ‘as long as’ (Solange) ‘the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Constitution’, the Constitutional Court would still control the constitutional legitimacy of EC law.⁵⁸

After this decision, the Constitutional Court gradually showed more and more willingness to relinquish its control, on the very basis of the Solange I doctrine, as the Community system developed certain structural characteristics which ensured that the exercise of the competences transferred would not be contrary to the Constitution. The doctrine thus identified in the jurisprudence of the Constitutional Court a principle of structural congruence (strukturelle Kongruenz) – that is, the need for a substantial equivalence between the structure of the German constitutional order and the international organisation to which competences are transferred.⁵⁹ Thus, in its Vielleicht (‘Maybe’) decision of 1979, the Constitutional Court declared in obiter dictum that it left open ‘whether and, if so, to what extent – maybe in view of political and legal developments in the European sphere occurring in the meantime – the principles contained in its decision of 29 May 1974 can continue to claim validity without limitation’.⁶⁰

A turning point in the case law of the German Constitutional Court was its Solange II decision (1986).⁶¹ The Court held that, at the EC level, ‘there should be a guarantee of the application of fundamental rights which in substance and effectiveness is essentially similar to the protection of fundamental rights required unconditionally by the Constitution’,⁶² and that ‘so long as’ (Solange) an effective protection was thus ensured, the Court would not exercise its jurisdiction ‘to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities…and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution’.⁶³ Thus, the Constitutional Court stressed the ‘functional interlocking of the jurisdiction of the European Communities with those of the Member-States’.⁶⁴ This strengthened the position of the ECJ, now considered the effective ‘ordinary’ guardian of fundamental rights, but also implied the Constitutional Court’s final say in conflicts with the ECJ.

That all this concern for fundamental constitutional values may not have been unfounded may be illustrated with some practical examples. In Groener (1989), for instance, the ECJ balanced the protection of the Gaelic language in Ireland with the EC principle of free movement of labour, in holding that the Irish laws requiring teachers to pass a Gaelic-language exam to obtain a job was a reasonable and non-discriminatory restriction to EC law.⁶⁵ In Grogan (1991), the freedom to supply services was balanced against the Irish prohibition of the distribution of information concerning abortion services in another Member State. The ECJ held that while abortion could be considered a service under EC law, the Irish prohibition in cause did not violate EC law because in this case the link between the providers of information and the providers of abortion in another Member State was too indirect.⁶⁶

In general, the ECJ has been cautious in giving a decision that may directly clash with national constitutional values. Further, it has incorporated human rights into the EC legal order, adopting for its criteria the constitutional traditions common to the Member States and the international human rights conventions to which they have subscribed.⁶⁷ Thus, the interaction between the ECJ and national constitutional courts has led to ‘stable accommodations on rights and to the obligation of ordinary courts to enforce EC law’.⁶⁸ However, the problem remains who is the ultimate authority to determine the constitutionality of EC acts. This was recast in the Maastricht judgment of the German Constitutional Court in the form of the Kompetenz-Kompetenz problem, ‘the question as to which jurisdiction, Community or national, has the ultimate authority to declare the unconstitutionality of Community measures on the grounds of ultra vires and effectively to become the arbiter of the jurisdictional limits of the Community legal order’.⁶⁹ The German Constitutional Court’s assertion of its competence reflects democracy concerns within national legal systems arising from the ever-expanding competences of the Community.

Thus, the legal integration with national legal systems attained by EC law was achieved in close partnership with national constitutional systems, which sanctioned, and therefore conditioned, the profound transformations of the EC legal order. It is precisely such legal integration that seemed ‘to be more solicitous to an involvement of national jurisdictions in the determination of jurisdictional limits of the Community legal order’.⁷⁰

While international law would not justify, except in the narrowest circumstances, a State’s use of national law including constitutional law for non-performance of an international obligation, paradoxically this seems more acceptable in a vertically integrated system. As stated by Joseph Weiler and Ulrich Haltern, the approach of national constitutional courts ‘is an insistence on a more polycentred view of constitutional adjudication and will eventually force a more even conversation between the European Court and its national constitutional counterparts’.⁷¹

This conferred on European integration a new dimension, as it demanded the reconciliation of EC law with fundamental constitutional values.⁷² Constitutional limitations acted not as external constraints to the EC legal order but as demands that this had to satisfy within its own structure. While national constitutions were adapted to European integration, EC law ‘draws on and integrates the national constitutional orders’.⁷³

Voice in investment treaty case law: the comparative law perspective

The investment treaty regime does not have an institutional structure anywhere similar to the EU. It is still largely an inter-governmental framework which allows for traditional forms of Voice, such as direct amendment by States of existing investment treaties or the issuance of binding interpretations of its terms. However, the investment treaty regime also has supranational features. Investment arbitration tribunals settle disputes in a binding form, allegedly constrain State action, and act as lawmakers in international investment law.⁷⁴ The question is whether, within these supranational dynamics, a more system-internal type of Voice may be developing, along the lines of the stable accommodation and dialogue between legal orders characteristic of the EU system.

One such phenomenon may be the comparative public law approach in the interpretation of investment treaty protections, that draws on domestic administrative and constitutional law in construing the scope of such standards. The genuinely public law nature of international investment law would justify it, and the approach could be a way to legitimise the investment treaty regime by making it more acceptable to national legal orders.⁷⁵

The comparative law methodology is not a new development in the field. It was already present in the second award ever issued in investment treaty arbitration made public only recently, the Saar Papier v. Poland award.⁷⁶ The tribunal in this case made explicit use of domestic administrative law to interpret the provisions on indirect expropriation in the Germany–Poland BIT.⁷⁷ The tribunal pointed out that ‘[t]o interpret the Treaty administrative law practice in Germany and Poland would be helpful’ and, after complaining that ‘[d]espite repeated requests, the arbitral tribunal received little help from the parties on German and Polish administrative law’, relied on ‘general administrative law and the principle of good faith to interpret the Treaty’,⁷⁸ particularly the law of the States of nationality of the two arbitrators that formed the majority opinion, Germany and Switzerland.

The tribunal found that ‘[i]n administrative law practice two approaches converge to deal with this type of problem’, meaning the definition of indirect expropriation. First, the tribunal referred to an effects and proportionality test:

Secondly, the tribunal alluded to a legitimate expectations approach:

As noted by a commentator, the arbitrators in this case seemed to be ‘unaware of relevant international jurisprudence’ and ‘simply reached for the closest analogy that they could find’.⁸¹ This may be right, and indeed it is curious that, for example, no case of the Iran–US Claims Tribunal is cited as international law authority for the effects test. In any case, the fact remains that this is the first example of the comparative public law approach in investment treaty case law, providing comparative administrative law support for international law doctrines that have been subject to much criticism in today’s commentary.

Reasoning similar to the Saar Papier tribunal only resurfaced in investment treaty case law many years later, for example in the Tecmed v. Mexico award as far as the good faith principle and proportionality test is concerned.⁸² For its part, the comparative public law approach reappeared even later. In fact, this approach was not fully and explicitly used until the liability decision in Total v. Argentina, dated 27 December 2010. In this case the tribunal found that the comparative law analysis was justified in interpreting the fair and equitable treatment standard:

The tribunal elaborated on the comparative law perspective, in particular in relation to the legitimate expectations doctrine:

In this same line, the tribunal in Toto v. Lebanon stated that ‘[t]he fair and equitable treatment standard of international law does not depend on the perception of the frustrated investor, but should use public international law and comparative domestic public law as a benchmark’.⁸⁵

The comparative law perspective is not without problems, for example that of the criteria for the selection of the comparative legal orders, and the inherent abstraction involved in assessing the recognition of a specific legal principle across different legal systems. Further, investment arbitration tribunals interpret treaty provisions and as such must apply international law. In this context, whether a certain principle of comparative law may be regarded as either a rule of customary international law or a general principle of law under Article 38(1) of the ICJ Statute may be arguable in many cases. No doubt this problem will need to be addressed in the jurisprudence if the comparative law perspective, with (and perhaps because of) its system-building capabilities, is to be applied in future cases.

Conclusion

The ad hoc nature of investment treaty tribunals makes it more likely, and perhaps even desirable,⁸⁶ that tribunals focus on the application of the law to a given dispute rather than on systemic elucidations. This, however, does not exclude the emergence in the case law of some system-building paradigms regarding the interaction between the investment treaty regime and domestic legal principles and courts. One such phenomenon may be the comparative law perspective, which is reminiscent of the dynamics of Voice, in the form of a dialogue between legal orders, in the EC framework. Other forms of Voice, existing or to be developed in further case law, may concern a more clear division of competence between national courts and investment tribunals depending on the nature and substantiation of disputes,⁸⁷ and the possibility of contract or domestic law counterclaims in investment cases.

Voice is a mechanism for the enhanced participation of domestic legal systems in the realm of international law. It has the virtue of contributing to the shaping of the international regime, gradually enriching it, and reinforcing its legitimacy. In contrast, Exit is the abandonment of the international regime altogether with the associated defeat of its fruitful interaction with national legal systems. In the investment treaty framework, both dynamics are at play. While exaggerated criticism pushes for Exit, Voice may be allowed to be heard in the more day-to-day workings of its supranational features – that is, investment treaty arbitration. As James Crawford suggested in 1997, ‘the relation between the international and constitutional levels can be reciprocal’ and this helps international law by ‘the co-opting of national constitutional limitations in the interests of international regularity’.⁸⁸

Introduction

Polar sovereignty was a relatively dormant issue in the second half of the twentieth century. The disputes that had emerged in Antarctica over territorial claims, which at one point had made their way to the International Court of Justice,¹ had been effectively resolved with the adoption in 1959 of the Antarctic Treaty.² Article IV of the Treaty proved capable of suppressing sovereignty tensions between the seven Antarctic territorial claimants,³ and also keeping in abeyance the interests of potential territorial claimants including the United States and the Soviet Union/Russian Federation.⁴ In the Arctic, territorial claims had also been settled by the time of World War II and, while the Cold War introduced military and security tensions into the Arctic, none of these directly related to contested territorial sovereignty.⁵

Nevertheless, there remain on-going sovereignty tensions, which if not properly managed have the potential to erupt into significant international disputes with implications reaching well beyond Antarctica and the Arctic. While Article IV of the Antarctic Treaty set aside sovereignty issues for the duration of the Treaty, tensions have been raised over recent submissions to the Commission on the Limits of the Continental Shelf (CLCS) over Southern Ocean outer continental shelf claims and by Japan’s refusal to acknowledge Australia’s proclaimed Whale Sanctuary offshore Antarctica and the on-going conduct of its Southern Ocean ‘scientific’ whaling programme. Arctic outer continental shelf claims are also a source of tension, placing a spotlight upon the CLCS as it reviews claims and how Arctic States resolve overlapping maritime claims. The status of certain waters also remains in dispute, including the Northwest Passage where the United States questions Canadian sovereignty over those waters. Melting ice means that the Arctic Ocean is also becoming more accessible to shipping, raising issues with respect to the freedom of navigation being exercised by non-Arctic States such as China.⁶ This chapter will review these issues and make observations as to how polar sovereignty may be understood in coming decades and, in doing so, will build upon some of James Crawford’s analysis of these issues.⁷

Polar sovereignty

Polar sovereignty and the effective assertion of territorial title to polar lands have held a fascination for international lawyers for over a century. This has no doubt been driven by the relative contemporary exploration of polar lands, which resulted in both the North and South Pole being first reached early in the twentieth century, and also because of the challenges in effectively asserting sovereignty over polar lands. As a result, notwithstanding discovery of polar lands and the assertions of title that were often associated with those discoveries, claims over Antarctica or the Arctic represented classic examples of inchoate titles in need of perfection. That the Eastern Greenland case acknowledged the challenges associated with the effective assertion of title over polar lands⁸ provided an additional legal basis for appreciating the distinctiveness of these issues.

There are five recognised methods of acquiring sovereignty over territory: occupation, annexation, accretion, prescription and cession.⁹ During early expeditions to the Arctic and Antarctic, various territorial claims were made, predominantly based upon acts of discovery, the raising of the flag and an act of proclamation.¹⁰ However, as was held in the Island of Palmas Arbitration,¹¹ states whose basis of claim is discovery only have an inchoate title which must be perfected by later acts demonstrating an actual intent to exercise sovereignty over the discovered lands. This raised questions as to how traditional principles of territorial sovereignty could be applied in areas remote from the metropolitan power and where there was no immediate prospect of colonising those lands.

Throughout the twentieth century the effective exercise of sovereignty over polar lands was problematic given their relative inaccessibility and distance from metropolitan lands. Judge Huber in Island of Palmas recognised that differential standards may apply ‘according to conditions of time and place’, and also whether territory was inhabited or uninhabited.¹² However, it was in Eastern Greenland that the Permanent Court made express reference to the particular challenges associated with fulfilling the requirements of effective occupation in the polar regions, noting that:

While publicists have agreed that the strict standards applied to more temperate lands do not apply to the polar regions,¹⁴ they have maintained that some of the traditional incidents of effective occupation must still be made out.¹⁵ This opens for consideration whether different standards should be applied to the determination of polar territorial claims in the twenty-first century than was previously the case. Two factors immediately would appear relevant. The first is that the polar regions are now more accessible than was the case at the time they were first discovered and when the early cases were decided. While they cannot necessarily be equated with ‘temperate lands’, they can be reached with an ease that would have been unimaginable a century ago and as such are no longer as ‘distant’ as previously imagined. The second is that modern technology has rendered the polar regions capable of settlement in much the same fashion as other parts of the globe. In the Arctic, the Russian city of Murmansk is the biggest city north of the Arctic Circle with a population of over 330,000.¹⁶ In Antarctica, the American base at McMurdo Sound has an austral winter population of up to 200 and a summer population of up to 1,100, while at the South Pole the American Amundsen/Scott base is also capable of accommodating 245 persons in summer.¹⁷

An unresolved aspect of polar sovereignty is the status of claims based upon the so-called ‘sector theory’ which is that States can assert a territorial claim along lines of latitude that run directly to the Pole, thereby effectively dividing up the region. A significant feature of Antarctic claims is that, with the exception of Norway, they are all based on a sector as all the claims commence at points along the Antarctic coast and converge along degrees of longitude at the geographic South Pole. The sector theory has also been influential in debates over Arctic territorial claims, where it was thought to have been based upon principles such as contiguity, ‘hinterland’ or the ‘spheres of influence’ doctrine.¹⁸ In the Arctic, sector claims are based on the geographic proximity of the claimant State, and have from time to time been asserted as a basis of claim to Arctic lands by Canada and Russia. In Antarctica, only Argentina and Chile are sufficiently geographically proximate to be able to rely upon a form of sector claim linked to contiguity or related bases of claim. Ultimately, sector theory has never been the subject of final determination by an international court or tribunal, has never been officially relied upon by claimant states to polar lands, and has been subject to widespread critique from commentators. Crawford has recently assessed the principle as one that ‘remains a rough method of delimitation, and has not become a separate rule of law’,¹⁹ while Shaw characterises it as a ‘political proposition’.²⁰ Crawford’s further reservations extend to the observation that the sector principle inherits some of the defects of contiguity, that ‘its application is a little absurd insofar as there is a claim to a narrow sliver of sovereignty stretching to the Pole’ and that it cannot apply to areas of the high seas.²¹ It can therefore be observed that while the standard international law principles associated with the assertion of sovereignty and the perfection of territorial title apply to polar lands, there has also been some recognition of the distinctive aspects of polar sovereignty. Whether those points of distinction, including particular theories that have been applied in the past to polar lands such as the sector theory, have much contemporary application is a matter for determination.

Antarctic sovereignty

In 1959, when the Antarctic Treaty was negotiated, sovereignty over the continent was unresolved. To that end, Article IV of the Antarctic Treaty is a remarkable provision which has proven itself capable of multiple interpretations and some evolution over the more than fifty years the Treaty has been in force.²² Initially, the goal was to reach a settlement amongst the seven territorial claimants and the United States and Soviet Union so as to allow for the orderly management of Antarctic affairs and neutralise sovereignty from Antarctic discourse. This proved to be a major strength when the Antarctic Treaty became the focus of sustained criticism in the United Nations General Assembly during the 1980s. By being able to demonstrate that traditional notions of State sovereignty were not exercised in Antarctica, the Antarctic Treaty parties were able to successfully mount a diplomatic response, deflecting criticism of the Treaty and the Antarctic Treaty System (ATS).²³ More recently, as some claimant States have sought to secure their positions with respect to maritime claims in the Southern Ocean, Article IV and its interpretation has once again become a live issue within the ATS.²⁴

The issues concerning Antarctic sovereignty are highlighted by considering Australia’s position. Australia has been a long-standing player in polar affairs, formally commencing with Sir Douglas Mawson’s 1911–14 expedition which eventually paved the way for Australian interests in Antarctica to be formalised by way of the declaration of the Australian Antarctic Territory (AAT) in 1936.²⁵ Australia’s polar interests have been predominantly realised through territorial claims to the AAT, and through its sub-Antarctic islands: Macquarie Island, Heard Island and McDonald Island. Those claims remain of considerable significance to Australia as was highlighted in 2012 when Australia proclaimed outer continental shelves offshore Heard Island and Macquarie Island, which extend deep into the Southern Ocean.²⁶ Nevertheless, Australian sovereignty over Antarctica is not positively recognised by many States and, with the exception of the reciprocal recognition accorded Antarctic claims between Australia, France, New Zealand and the United Kingdom, lingering doubts remain over whether Australia’s claim to the AAT has been perfected.²⁷

In the past decade, Australian sovereignty in Antarctica has been confronted with the challenges of Japanese whaling and outer continental shelf claims. Since the 1970s Australia has progressively adopted a pro-conservation position towards whales, and these developments have been reflected in Australian law. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) creates an Australian Whale Sanctuary, which applies offshore the Australian continent, offshore territories and the AAT. Whaling within the Australian Whale Sanctuary is prohibited and the Act applies to all persons and vessels,²⁸ giving no consideration to possible Antarctic Treaty constraints on the application of Australian law to foreign nationals.²⁹ Notwithstanding Japan’s conduct of whaling operations within the Australian Whale Sanctuary, no Australian government agency has to date sought to enforce the prohibition on whaling. In 2004 a non-governmental organisation, Humane Society International (HSI), contested this view and commenced proceedings in the Australian courts, arguing that Japanese whaling activity was contrary to the EPBC Act. In a series of proceedings before the Federal Court from 2004–8,³⁰ declaratory and injunctive relief was sought concerning whaling alleged to have been carried out by Kyodo Senpaku Kaisha, a corporation holding a licence from the Japanese government to conduct ‘special permit’ whaling in the Southern Ocean. Following a series of legal proceedings in 2008,³¹ the Federal Court of Australia delivered its final judgment in the matter.³² Satisfied that a ‘significant number of whales were taken inside the Australian Whale Sanctuary’,³³ the Court concluded that Kyodo had contravened a number of relevant provisions of the EPBC Act in relation to both minke whales and fin whales, and issued orders that Kyodo be restrained from engaging in any such further acts.³⁴ HSI arranged for the Federal Court’s judgment to be served upon Kyodo in Japan in late January 2008.³⁵ These orders have not deterred Kyodo from continuing with its whaling programme and there have been continual infringements of the Australian Whale Sanctuary since 2008.³⁶

What may be perceived as Australian reticence over the active enforcement of Australian law in the case of whaling can be contrasted with the more active assertion of Australian sovereignty over its Southern Ocean continental shelf. In 2004 Australia made its CLCS submission of data with respect to an outer continental shelf in the Southern Ocean, and more generally offshore the Australian continent and territories.³⁷ This process, made consistently with mechanisms provided for under Article 76 of the 1982 United Nations Convention on the Law of the Sea (LOSC),³⁸ asserted a potential Australian Southern Ocean outer continental shelf claim offshore the AAT, Heard and McDonald Islands, and Macquarie Island. However, mindful of the fact that the Commission does not consider continental shelf claims with respect to disputed territory, Australia requested the CLCS ‘not to take any action for the time being’ with respect to the continental shelf appurtenant to Antarctica.³⁹ Nevertheless, Australia’s submission generated responses from eight states, of which six made direct observations regarding a claimed outer continental shelf off the AAT coast.⁴⁰ Japan, for example, indicated in its communication to the United Nations Secretary-General that it ‘does not recognize any State’s right of or claims to territorial sovereignty in Antarctica’.⁴¹ Because Australia was the first State to go before the CLCS with data associated with continental shelf claims offshore Antarctica, some reaction could have been anticipated,⁴² and to that end Australia paved the way for other Antarctic claimants in their CLCS dealings. Likewise, Australia was also the first State to assert an outer continental shelf in the Southern Ocean. In May 2012 Australia formally proclaimed adjusted outer limits of the Australian continental shelf, which in the case of both the Heard and McDonald Islands, and Macquarie Island, at their southern limit terminate within the Antarctic Treaty area.⁴³

Arctic sovereignty

Arctic territorial sovereignty has been less contentious than in Antarctica, superficially because there has been less disputed territory. Following the period of intense discovery of Arctic lands in the late nineteenth and early twentieth century, which included the ‘race for the Pole’, Arctic territorial disputes were settled in a relatively orderly fashion, including by reference to the Permanent Court of International Justice (PCIJ). At present, the only territorial dispute is that between Canada and Denmark over Hans Island, which is a very small island that straddles Nares Strait between Greenland and Ellesmere Island.⁴⁴ There have, nevertheless, been sovereignty tensions in the Arctic, especially as discussed below between Canada and the United States over the characterisation of the Northwest Passage as either internal waters or an international strait.

The dawn of the twenty-first century has seen a significant shift in the debate over Arctic sovereignty and this has been due to a number of factors. The first is the effects of the melting of the sea ice of the Arctic Ocean. In recent years the effect of the melt has been dramatic, with significant tracts of open water appearing in parts of the Arctic Ocean and a shifting ice pattern becoming discernible.⁴⁵ The permanent disappearance of Arctic sea ice throughout much of the region during the summer months has resource access implications. Previously inaccessible areas of the Arctic Ocean will potentially become accessible for various forms of resource exploitation, ranging from the non-living resources of the sea-bed, to fish stocks and other living resources of the water column. With increased resource exploitation, there is the potential for demands for greater foreign access by States which may not traditionally have had an interest in the region. This may especially be the case with respect to Arctic fisheries and that area of Arctic high seas beyond the limits of coastal State jurisdiction. It follows that this will in turn raise issues of increased navigational interest in Arctic waters, not only with respect to navigation within the Arctic but by members of the international community eager to gain access to new shipping routes between the North Pacific and North Atlantic. A second factor is the rising tension associated with outer continental shelf claims, which will potentially converge in the central Arctic Ocean, resulting in the need for resolution of additional maritime boundaries to settle overlapping claims.⁴⁶

The combination of climate change and the potential for at least a partially ice-free Arctic Ocean, combined with an acknowledgement of continental shelf rights in an area that is becoming more accessible to a range of maritime activities, has generated considerable political interest, with accompanying legal and policy implications.⁴⁷ One particular dimension of this renewed interest in the Arctic has been the attention given to Arctic shipping in general, and navigational issues in particular.⁴⁸ Two Arctic shipping routes have traditionally attracted attention. The first – the so-called Northern Sea Route⁴⁹ – runs along Russia’s northern coast primarily within coastal waters. As there has been little dispute over Russia’s capacity to control navigation within these waters consistent with the law of the sea, the Northern Sea Route has rarely been the subject of controversy. This has not been the case with respect to the Northwest Passage. A variety of interconnected sea routes which pass between the islands that make up the Canadian Arctic Archipelago, the status of the Northwest Passage has been the subject of on-going dispute between Canada and the US ever since the voyage of the SS Manhattan in 1969. In response to the Manhattan voyage, which attempted to demonstrate the capacity of a supertanker to shuttle between the Alaskan oil fields and the United States’s eastern seaboard, Canada adopted the Arctic Waters Pollution Prevention Act, placing significant constraints on the passage of vessels through its Arctic waters on environmental grounds. Canada took further steps in the 1980s to bolster its control of its Arctic waters through the declaration of straight baselines around the outer limits of its Arctic islands with the effect that all vessels passing through the Northwest Passage would be within Canadian internal waters. The significance of Canada’s initiatives has been to convert waters that may at one time have been a part of the territorial sea or exclusive economic zone, within which certain navigational rights existed for foreign ships, into waters over which Canada has complete sovereignty and the capacity to regulate all shipping – including the right to deny entry to foreign vessels.⁵⁰ Canada’s position with respect to navigation through the Northwest Passage has been tolerated, though subject to protest by the United States. It has not been tested, however, before any international court or tribunal, and while Canada’s position finds some support in Article 234 of the LOSC granting to coastal States a capacity to adopt additional environmental measures for ice-covered waters,⁵¹ this does not provide a foundation for Canada’s baselines interpretation or the constraints which have been placed on navigation. This remains a dormant legal issue which has the potential to erupt directly as a result of climate change and the new opportunities for safe and efficient navigation through the Northwest Passage.

A significant increase in Arctic shipping has the potential to stoke new sovereignty tensions. The 2009 Arctic Maritime Shipping Assessment (AMSA) Report⁵² highlighted the potential for an increase in not only destinational Arctic shipping, but also trans-Arctic shipping via shipping routes that cross the Arctic Ocean from a point of entry to a point of exit. Such shipping routes may operate via the Northern Sea Route or Northwest Passage, or through the Central Arctic Ocean, with the effect that the Bering Strait (where the Russian Federation and United States are the littoral states) would become a pivotal route for access or egress to the Arctic.⁵³ A trans-Arctic shipping route through the Bering Strait, across the Arctic Ocean and then via the Fram and Greenland Straits to Iceland, is almost 5,000 miles shorter than using the Panama Canal between Hamburg and Yokohama. Polar class vessels, capable of operating in a substantially ice-reduced Arctic, are on order and are being built in order to take advantage of these opportunities.⁵⁴

In the case of the Arctic, much of the Arctic Ocean remains beyond the limits of existing 200-nautical-mile continental shelf claims, including the seabed at the North Pole. A great deal of the Arctic Ocean is potentially susceptible to an outer continental shelf claim by the Arctic Ocean littoral states, which include Canada, Denmark (Greenland), Norway, the Russian Federation and the United States. The potential of these claims to raise sovereignty hackles was famously highlighted in August 2007 by the planting of a Russian flag by a mini-submarine on the Arctic Ocean seabed at the North Pole.⁵⁵ More substantively, the growing number of claims before the CLCS by Arctic States, including Canada’s anticipated claim, plus the uncertainty as to the position of the United States and its claims offshore Alaska, has contributed to not only a growing media fascination with Arctic sovereignty but parallel consideration of Arctic legal issues and governance that was absent for much of the twentieth century.⁵⁶ Russia was the first Arctic State to make its CLCS submission in 2001, which has since been followed by Norway, and Denmark. A Canadian claim is anticipated in 2013 while the position of the United States is uncertain as it has yet to become a party to the LOSC.

Contemporary challenges

The contemporary issues confronting the polar regions ultimately reflect the phenomenon of globalisation. A century ago Antarctica and the Arctic were literally the last places on earth subject to exploration, and even after the Poles were conquered it was not really until the advent of reliable polar air transportation that comprehensive mapping of polar lands was completed in the 1950s. In the twenty-first century another type of exploration is taking place as the polar seabed is mapped to support CLCS submissions. The consequence has been that as a result of the dual effects of climate change and the contemporary law of the sea polar sovereignty has again come into the public and political spotlight.

International law does provide a framework for the resolution of these issues, a fact the five Arctic littoral States recognised in May 2008 when they issued the Ilulissat Declaration. The Declaration affirms the capacity of the law of the sea to provide ‘important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea’.⁵⁷ In a direct reference to resolution of Arctic maritime boundaries, the Declaration also stated that ‘We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.’⁵⁸ The law of the sea is therefore central to how polar maritime sovereignty is to be determined and ultimately exercised, within which the CLCS will play a pivotal part.

The CLCS operates under a mandate based upon Article 76 and Annex II of the LOSC, and its Rules of Procedure make clear that it will not become engaged in political or legal disputes. To date, the CLCS has sought to strictly maintain its role as a scientific and technical body, and as such the Commission has sought to neatly side-step claims which have been asserted offshore disputed territories, or which may result in overlapping claims between two or more states. In the Southern Ocean, both Australia and New Zealand indicated their desire for the CLCS to set aside for the time being potential outer continental shelf claims that could be asserted offshore their Antarctic territories. An alternative approach was taken by Argentina whose 2009 CLCS submission claimed an outer continental shelf offshore its Antarctic territories and adjacent islands.⁵⁹ While Argentina has notified the CLCS as to the existence of disputes with the United Kingdom with respect to the Falkland Islands, South Georgia and the South Sandwich Islands, no such indication was made in the case of its claim over continental Antarctica, or whether there existed constraints upon Argentina’s capacity to assert such a claim under the Antarctic Treaty.⁶⁰ Argentina’s CLCS submission, which remains queued for the time being with no immediate prospect of consideration by the Commission in the near future, has been the subject of diplomatic communications made via the United Nations Secretary-General to the Commission from six Antarctic Treaty parties.⁶¹

The position in the Arctic is also complex, not because of issues regarding territorial sovereignty but because the configuration of the Arctic Ocean is such that the continental shelf claims will predominantly converge in the Central Arctic Ocean, necessitating the resolution of maritime boundaries between the littoral states whose claims overlap. On current projections, this would potentially involve the resolution of boundaries between Denmark (Greenland) and Canada, Canada and the United States, the United States and Russia, Russia and Norway, and Norway and Denmark (Greenland).⁶² The CLCS is therefore set to become an important forum for resolving some of the controversies over Arctic seabed claims, and this may prove to be a catalyst for forcing the US to reassess its position towards the LOSC. Because there is to date so little State practice with respect to outer continental shelf claims under the LOSC, it cannot be said – unlike the general position with respect to 200-nautical-mile continental shelf claims – to be reflective of customary international law. There could be no basis for the United States asserting a unilateral claim to an outer continental shelf without having first acceded to the Convention and having made a submission before the CLCS. This is not to suggest that the United States would have to sit on the sidelines indefinitely whilst other Arctic states assert claims to the Arctic Ocean. One option may be for the United States to collaborate in submitting a joint CLCS Arctic claim. There is certainly precedent for the CLCS considering such claims, but in each instance the relevant claimant States have been parties to the LOSC and this may prove to be a hurdle for the United States adopting such a strategy. For this reason the United States may be forced in the very near future to accede to the LOSC.

Concluding remarks

Polar territorial and maritime sovereignty is significantly advanced in the twenty-first century compared to when it was first contemplated one hundred years ago. However, notwithstanding the developments in international law including the specific recognition of particular issues associated with polar sovereignty in the Eastern Greenland case and the Antarctic Treaty, and the manner in which maritime sovereignty can be claimed and exercised under the LOSC, there remain tensions over polar sovereignty which show no sign of abating. The stewardship of polar lands has been a dominant theme in political discourse and has been responsible for some remarkable diplomatic about-turns with respect to mining in the Arctic and Antarctica.⁶³ However, as climate change continues its onward march and the polar regions become more accessible, polar stewardship will be further challenged and in its place polar sovereignty will inevitably assume even greater significance. In the Arctic this will raise particular issues for indigenous peoples whose culture and livelihoods will be threatened by climate change and by new visitors challenging indigenous notions of sovereignty.⁶⁴ The polar regions are therefore rapidly approaching a crossroads where decisions will need to be made as to whether to continue the status quo which has served regional legal governance relatively well in recent decades, whether more traditional notions of State sovereignty are (re)applied or in the Arctic there is a significant rethinking of what is meant by sovereignty so as to encompass the views of indigenous peoples who have been the custodians of the region for centuries. Whatever the outcomes, international law will be tested by these developments and innovative solutions may be needed to ensure Antarctica and the Arctic remain areas of relative international peace and harmony where protection of the environment is a fundamental principle.

I Introduction

China is rising (or it has already risen). According to press reports, in 2010 China replaced Japan as the second biggest economy of the world.¹ The inexorable rise of China has led some international relations scholars to predict the inevitable conflict between China and the incumbent hegemon – that is, the United States.² China, which would like to avoid confrontation with the other superpower while it pursues the policy of economic modernisation, calls into question the conventional wisdom of the realist bent, in particular its thesis of the inevitability of conflict in the case of big change in power relations. China in 2012 promoted its own revisionist theory entitled ‘a new type of great power relationship’ (Xinxing Daguo Guanxi).³

Against this background, an important question for international law scholars is whether and how the rise of China will translate into (hopefully peaceful) change in the normative configurations of international society. To adduce an example, the rise of China brings with it a renewed and even (to some ears) ‘retro-sounding’ emphasis on the principle of (State) sovereignty. Recently, there have been premature rumours of the death of sovereignty, and the concept of sovereignty is often criticised for being a stumbling block in the increasingly globalising world. In contrast, the newly rising (or, to use Kissinger’s perceptive expression, ‘returning’⁴) China unabashedly claims itself to be ‘a most enthusiastic champion’ for the principle.⁵

The impact of China’s rise on current international law is strongly felt, among others, in the field of territorial sovereignty that delineates the space within which State sovereignty (imperium, jurisdictio) is exercised.⁶ The recent flare-up between China and Japan over the Senkaku/Diaoyudao Islands is a case in point. In 2013, China began to call into doubt even the territorial status quo of Okinawa.⁷ It is well known that China has fervently emphasised the principle of territorial integrity⁸ and is faced with some thorny territorial issues (actual or potential) of its own. An immediate question is why and on what ground China raises such claims vis-à-vis Japan that carry the risk of boomeranging back to itself.

If one looks at the question from a broader historical perspective, one can ask whether the historical fact that the traditional East Asian world order (which enjoyed an exceptional longevity spanning a couple of millennia⁹) was abruptly and violently replaced by a new normative order called the ‘public law of Europe’ bears on the issue of territorial sovereignty over the islands.

It is in this connection that the metaphors of tabula rasa and palimpsest come in handy. Is international law in East Asia a tabula rasa onto which only the European set of norms are indelibly etched? Or is it a palimpsest – that is, a parchment which, though overwritten, still retains traces from the past practices of East Asia? As will be shown below, China seems to subscribe to the latter conceptualisation in dealing with its territorial differences with Japan. Then the question arises of whether and how these traces, if any, will impact on the articulation and functioning of international law in East Asia and, in particular, on the equitable resolution of territorial issues in the region.

I will begin by presenting a brief historical overview of the question (II). I will go on to describe the respective claims of Japan and China over the Senkaku/Diaoyu Islands (III) and then offer some critical remarks on the respective positions (IV). This will be followed by an attempt to elucidate what I called the palimpsestic nature of territorial sovereignty in East Asia (V). I will also provide brief concluding remarks (VI).

II Historical overview of the question of the Senkaku/Diaoyu Islands

It is beyond argument that many Chinese books and maps (dating from the Ming (1386–1644) and Qing periods (1644–1911)) recorded the group of uninhabited islands and rocks called Senkaku by the Japanese and Diayudao by the Chinese.¹⁰ They were used as navigational markers by various investiture missions sent to Ryukyu (present-day Okinawa) by China. More importantly, the islands were incorporated into the coastal defence system of the Ming Dynasty in 1561.¹¹

A change to this state of affairs took place with the annexation of the Ryukyu Kingdom into Japan in 1879. According to Japan, five years later a Japanese explorer ‘discovered’ these islands. In January 1895, when Japan’s victory over China in the Sino-Japanese War was virtually sealed, Japan formally annexed these islands as terra nullius.

During World War II, the Allies adopted the Cairo Declaration on 1 December 1943 and declared their ‘purpose…that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa and the Pescadores, shall be restored to the Republic of China’.¹² The implementation of this Declaration was confirmed by Paragraph 8 of the Potsdam Proclamation of 26 July 1945, which Japan undertook to carry out in the Instrument of Surrender of 2 September 1945.¹³ China claims that in accordance with these documents ‘Diaoyu Dao, as affiliated islands of Taiwan, should be returned, together with Taiwan, to China.’¹⁴

After the end of World War II, these islands were put under the trusteeship of the United States in accordance with the 1951 San Francisco Peace Treaty with Japan. The United States exercised effective administration over these islands, using them as firing ranges. However, there was no protest from the Chinese side from 1945 until late 1971.

It was only in the late 1960s that the Chinese interest in the islands resurfaced upon the publication of a report by the UN Economic Commission for Asia and the Far East indicating potential oil and gas reserves in the vicinity of the islands.¹⁵ On 30 December 1971 the government of the People’s Republic of China (PRC) raised its territorial claim over the islands (the Republic of China government did so on 12 June 1971).¹⁶China argues that both sides recognised the existence of a territorial dispute over the Senkaku/Diaoyudao Islands in 1972 and 1978 and agreed to defer its settlement to a later date. Japan denies the existence of such an agreement.¹⁷

China and Japan remained in a ‘stagnant confrontation’¹⁸ until recently. The problem of delimiting the Exclusive Economic Zone (EEZ)/continental shelf in the East China Sea was compounded by the territorial question over the islands.¹⁹ The stagnant confrontation flared up into an open diplomatic and even military confrontation after September 2010 when a Chinese fishing boat collided with the patrol boats of the Japan Coast Guard. Upon the ‘nationalisation’ of three islands (including the biggest one, Uotsurishima/Diaoyudao) by the Japanese government in September 2012, the Chinese government upped the ante by establishing straight baselines around the islands.²⁰ China has also tried to erode the status quo ante by sending naval ships to patrol the waters near the Senkaku/Diaoyudao Islands.²¹

Based on this summary, let me now proceed to a brief description and analysis of the respective claims of China and Japan.

III The respective positions of China and Japan on the Senkaku/Diaoyu Islands

I will present brief descriptions of the respective positions of China and Japan concerning title to the Senkaku/Diaoyu Islands, limiting myself to the facts that are closely related to the main argument of this chapter, the palimpsestic structure or nature of territorial sovereignty in East Asia.

IV Some critical remarks on the respective positions of China and Japan

This section will offer some critical remarks on the respective positions of China and Japan over the question of the Senkaku/Diaoyu Islands. It will focus on the questions that have an immediate relevance to the main question under consideration – that is, whether modern international law alone should be taken into account when tackling the problem of determining territorial sovereignty over the Senkaku/Diaoyu Islands.

V The palimpsestic nature of territorial sovereignty in East Asia

This chapter does not aim to evaluate the merits of the respective claims of China and Japan over the Senkaku/Diaoyu Islands, but to examine the fundamental question underlying China’s argument: the existence and relevance of the traditional concept of territorial sovereignty and its implications for the resolution of the Senkaku/Diaoyu dispute. I will first describe the dilemma faced by the Chinese side and then suggest a strategy for a palimpsestic reconstruction of its claims over the Senkaku/Diaoyu Islands.

VI Concluding remarks

In this short chapter, I have conducted a preliminary investigation into China’s ‘rise’ or ‘return’ and its implications for the resolution of a territorial question between China and Japan, concerning the Senkaku/Diaoyu Islands. In so doing, I have attempted to demonstrate that while Japan operates under the European version of territorial law that has enjoyed a monopolistic authority in the region since the latter half of the nineteenth century, China places a substantial reliance on, in addition to contemporary international law, the normative discourse that reigned supreme in traditional East Asia. I have used the metaphor of palimpsest to delve into the (at least partially) double-layered structure or nature of international law in today’s East Asia. The metaphor can be utilised in other non-European regions of the world.

One may ask about the differences between China’s rise and its challenge for contemporary public international law, on the one hand, and the other challenges coming from outside Western Europe in the past, on the other. As regards the latter, three examples come to mind. First, Japan’s rise in the post-1945 period was partial in the sense that it was limited to the economic and financial field. More importantly, Japan seems to lack an animus to change the international legal order. Secondly, the rise of the Soviet Union led to a fierce rivalry between the capitalist and the socialist camps and posed a great challenge to the unity and continuity of international law. The theory of peaceful co-existence, firmly premised on the fundamental incompatibility between the two camps,⁵⁰ is an apt example. However, ‘peaceful co-existence’ meant co-survival in a state of ‘cold peace’ without meaningful interchange. This constitutes a significant contrast to the relationship between China and the rest of the world that can be characterised as one of profound entanglement. Thirdly, there was a serious attempt by the G-77 states to reformulate the international legal order during the period of de-colonisation, as is exemplified by the effort to establish a new international economic order or a new international information order. However, the rise of this group of states at the discursive level was not matched by a rise at the material level. In other words, their rise, if ever, had only animus, lacking in corpus. Thus looked at, the challenge China’s rise poses for current international law is unprecedented and, therefore, requires a focused and, at the same time, flexible response.

To use the metaphor of giant, China can be described as a giant that does not yet know how to articulate its normative past. The rise of China will surely impact on the configurations of the international normative system in one way or another, thus ensuring that the current international law is recalibrated to reflect the normative experiences and expectations of China. In the region, discomfort with the current system of international law is not limited to China. The late Professor Han-key Lee, who is regarded as one of the pioneers of modern international law research in Korea, proposed the establishment of a Regional International Court of Justice of Asia for the pacific settlement of disputes, especially disputes arising from State boundary or territory problems. This court was to ‘solve regional problems on the basis of regional philosophy of law and practices’.⁵¹

The re-conceptualisation of international law in East Asia from a palimpsestic perspective and the resultant recalibration of current international law carry the risk of furthering the centrifugal tendency of international law. This exercise cannot be a nostalgic and unreflective attempt to return to an ostensibly idyllic past, which is unfeasible given that international law has been transformed (probably irrevocably) by the ‘public law of Europe’. East Asians cannot return to the days when the positional superiority of China was the founding principle of the regional order. In particular, one should beware the danger of the palimpsestic approach to territorial questions in East Asia falling prey to the siren call of irredentism, which runs diametrically counter to the fundamental principle of the stability of boundaries. It should aim at a more modest and pragmatic goal of achieving a peaceful change or polyphonic reconstruction of international law without radically undermining the stability and security of the current international order.