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In the late spring of 1992, the Secretary-General of the UN delivered a report to the Security Council that captured the attention of the international community. Yugoslavia – from which Croatia and Slovenia had declared independence less than a year before – had fallen into a pitched civil war fuelled by bitter ethnic tensions between Serb, Croat and Muslim communities. Nestled in the centre of the former unified state, the nascent republic of Bosnia-Herzegovina became the scene of atrocities not seen since the Second World War. The Serbs of Bosnia-Herzegovina, the Secretary-General reported, were making a ‘concerted effort … to create “ethnically pure” regions’ in the Republic,2 employing tactics that ‘were as brutal as they were effective’. Reports on the situation documented the grim scene: the killing or displacement of 2.1 million Bosnians by the summer of 1993, the systematic rape of women and girls and the operation of 715 detention centres in which rape, torture and execution was commonplace.
The Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO) is the compulsory, binding inter-state adjudicatory system for disputes between member states related to WTO law. The panels and the Appellate Body (AB) that work under the framework of the DSM have gained a reputation for judicious and effective dispute resolution in the international sphere, leading them to be hailed as a guiding light for other international courts and tribunals. Although fact-intensive cases are the norm in the WTO DSM, the legal questions that come before panels and the AB are primarily questions of treaty interpretation and hence hold interest for any study of legal interpretation.3
The interaction between domestic law and international law is a topic of perennial interest for international lawyers. Domestic law has long been recognised as a source of international law, an inspiration for legal developments or the benchmark against which a legal system is to be assessed. Often, it is simply treated as mere fact, indicative of the legality of a state’s actions. Academic commentary normally re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law has been thoroughly mapped, and is unworthy of further enquiry. However, a different – and surprisingly pervasive – nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. The present book aims to fill that gap in the literature.
The European Convention on Human Rights and Fundamental Freedoms (ECHR, or ‘the Convention’) was adopted in 1950 by 12 member states of the Council of Europe and entered into force three years later. The Convention was a direct response to the Second World War,2 and aimed to give effect to the rights enounced in the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948. The Convention and its associated 15 Protocols protect mainly the civil and political rights of citizens of the member states of the Council of Europe. These rights are enforceable by judicial procedure under Articles 33 and 34 of the Convention, which provide the European Court of Human Rights (ECtHR, or ‘the Court’) with jurisdiction over inter-state disputes and applications from aggrieved individuals, respectively.
On 12 January 2016, 10 sailors from the United States Navy accidently navigated into the Iranian territorial sea under the mistaken impression they were in Saudi Arabian waters. Within hours, Iran’s Islamic Revolutionary Guards had captured the vessels, seized 13,000 pages of intelligence from computers on board and detained the sailors. Unsurprisingly, Iran’s actions drew strong condemnation from US government officials. As in many warps of life, legal rules provided both the language and the standard against which the actions of Iran were assessed. Government and military officials did not criticise Iran’s actions as being unfair or unjust; instead, their comments focussed on the legality of Iran’s actions: some labelled it as an ‘outrageous’ act that was ‘inconsistent with international law’, whilst others called it an act in ‘apparent violation of international law and centuries of maritime custom and tradition’.
Of the courts and tribunals surveyed in this book, those that deal with inter-state disputes have been most reticent to invoke domestic law to interpret international law. Some commentators have suggested that this may be due to a concern of bias towards the cited countries, a remark that certainly seems to have weight and perhaps explains why the courts and tribunals examined in this and the following chapter have tightly circumscribed their reference to domestic law, generally limiting the cited law to the parties to the case at hand.
However, other factors would also seem to distinguish inter-state courts and tribunals from those examined in subsequent chapters. The most obvious of these is the weaker analogy between domestic law and international law related to inter-state affairs, insofar as the latter aims to regulate the actions of states, not individuals. Whilst international criminal law, human rights law and international investment law arguably have clear parallels with domestic criminal law, constitutional law and public and administrative law, respectively, the rules regulating inter-state conduct have traditionally been analogised to domestic private law, especially to the law of contracts and trusts, and more recently to constitutional and public law. Yet, there are evident limits to how far these analogies are applicable to inter-state relations.
This chapter and the following chapter explore the use of domestic law by two inter-state courts and tribunals. This chapter examines the jurisprudence of the International Court of Justice (ICJ), whilst the following chapter analyses the case law of the panels and Appellate Body of the World Trade Organization (WTO). Although the cases examined vary significantly in terms of subject matter, certain common themes are identifiable. In particular, the relatively rare instances in which domestic law has been used raise questions regarding the circumstances in which domestic law may indicate the intention of a state.
The preceding chapters demonstrate that domestic law has been used by international courts and tribunals in a variety of different ways to interpret international legal rules or instruments. Each instance of comparative reasoning is inextricably linked to the legal and historical context in which it occurs and in which the court or tribunal operates. The novelty of the specific legal regime, the presumed knowledge of other states parties or the presence of nebulous treaty standards are all factors that have led to the use of domestic law as a means of interpretation. As such, drawing general conclusions from a study such as this is difficult.
The relative novelty of the international investment regime has led authors to draw analogies with a range of other systems, from international commercial arbitration to human rights law, in order to respond to the host of theoretical and practical challenges the regime poses. Of these analogies, perhaps the most interesting is the parallel drawn with domestic public law. Advocates of the analogy argue that investment disputes are ‘regulatory dispute[s] arising between the state (acting in a public capacity) and an individual who is subject to the exercise of public authority by the state’ in much the same way as public and administrative law disputes relate to the exercise of public authority in domestic legal systems. They contend that this functional similarity means that it is beneficial to look to domestic public law to fill gaps, resolve ambiguities or understand the nature of the international investment regime.
Domestic law has long been recognised as a source of international law, an inspiration for legal developments, or the benchmark against which a legal system is to be assessed. Academic commentary normally re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law is unworthy of further enquiry. However, a different - and surprisingly pervasive - nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. This book examines the practice of five international courts and tribunals to demonstrate that domestic law is invoked to interpret international law, often outside the framework of Articles 31 to 33 of the Vienna Convention on the Law of Treaties. It assesses the appropriateness of such recourse to domestic law as well as situating the practice within broader debates regarding interpretation and the interaction between domestic and international legal systems.
Detailed structural, volcanic, and sedimentary investigations of the crustal response to the emplacement of the Middle–Late Permian Emeishan large igneous province show that a rifting system developed prior to the main stage of flood basalt eruptions, in the form of sedimentary breccias, clastic sedimentary deposits and mafic hydromagmatic units. Detrital zircon grains from sandstones yield ~750–800 Ma LA-ICP-MS 206Pb/238U age clusters, showing that material was sourced from the Yangtze crystalline basement. Gabbros and pegmatites intruded along the normal faults of the rift system yield zircon ages of 264–260 Ma, and thus constrain the timing of rifting. N–S-trending rift zones developed along the western flank of the Pan-Xi palaeo-uplift, with NE–SW- and NNE–SSW-trending rifts on the eastern side and along the western and eastern margins of the Yangtze Block. The rifting progressed in pulses, with an initial phase of normal faulting followed by rapid deposition of breccias. Later there was lower-energy deposition of sandstone, with accompanying rhyolitic eruptions. This was followed by low-energy sedimentation of mudstones and dolomites, with accompanying hydromagmatic deposits. Rift system formation was constrained by a combination of far- and near-field tectonic stresses due to plate motions and lithospheric interaction with initial Emeishan volcanism.
Objectives: Dysbiosis of the gut microbiome is implicated in numerous human health conditions. Animal studies have linked microbiome disruption to changes in cognitive functioning, although no study has examined this possibility in neurologically healthy older adults. Methods: Participants were 43 community-dwelling older adults (50–85 years) that completed a brief cognitive test battery and provided stool samples for gut microbiome sequencing. Participants performing≥1 SD below normative performance on two or more tests were compared to persons with one or fewer impaired scores. Results: Mann Whitney U tests revealed different distributions of Bacteroidetes (p=.01), Firmicutes (p=.02), Proteobacteria (p=.04), and Verrucomicrobia (p=.003) between Intact and Impaired groups. These phyla were significantly correlated with cognitive test performances, particularly Verrucomicrobia and attention/executive function measures. Conclusions: The current findings suggest that composition of the gut microbiome is associated with cognitive test performance in neurologically healthy older adults. Future studies are needed to confirm these findings and explore possible mechanisms. (JINS, 2017, 23, 700–705)
Advanced paternal age at childbirth is associated with psychiatric disorders in offspring, including schizophrenia, bipolar disorder and autism. However, few studies have investigated paternal age's relationship with eating disorders in offspring. In a large, population-based cohort, we examined the association between paternal age and offspring eating disorders, and whether that association remains after adjustment for potential confounders (e.g. parental education level) that may be related to late/early selection into fatherhood and to eating disorder incidence.
Data for 2 276 809 individuals born in Sweden 1979–2001 were extracted from Swedish population and healthcare registers. The authors used Cox proportional hazards models to examine the effect of paternal age on the first incidence of healthcare-recorded anorexia nervosa (AN) and all eating disorders (AED) occurring 1987–2009. Models were adjusted for sex, birth order, maternal age at childbirth, and maternal and paternal covariates including country of birth, highest education level, and lifetime psychiatric and criminal history.
Even after adjustment for covariates including maternal age, advanced paternal age was associated with increased risk, and younger paternal age with decreased risk, of AN and AED. For example, the fully adjusted hazard ratio for the 45+ years (v. the 25–29 years) paternal age category was 1.32 [95% confidence interval (CI) 1.14–1.53] for AN and 1.26 (95% CI 1.13–1.40) for AED.
In this large, population-based cohort, paternal age at childbirth was positively associated with eating disorders in offspring, even after adjustment for potential confounders. Future research should further explore potential explanations for the association, including de novo mutations in the paternal germline.