Cynical International Law?: Abuse and Circumvention in Public International and European Law 3662621274, 9783662621271

Analysing international law through the prism of “cynicism” makes it possible to look beyond overt disregard for interna

486 99 5MB

English Pages 369 Year 2020

Report DMCA / Copyright


Table of contents :
How (Not) to Be Cynical in International Law
1 Cynicism as a Concept
2 Cynicism in International Law
Part I: Cynical Foundations of International Law
Cynicism and the Autonomy of International Law
1 Introduction
2 International Relations and International Law Perspectives on the Relationship Between Politics and Law
2.1 Power and International Law: The International Relations Perspective
2.2 Power and International Law: The International Law Perspective
3 The (Relative) Autonomy of International Law
4 Conclusion
Beyond Cynicism and Critique: International Law and the Possibility of Change
1 Introduction
2 The Possibility of Change
3 The Perils of Cynicism and Critique
3.1 Cynicism and Critique Are Not Productive as Such
3.2 Critique as Diverting and Channelling Source?
3.3 Cynicism and Critique Without Alternatives? The Inevitability Narrative
4 Change and the Danger of Legalism
4.1 Implications of a Legalistic Worldview
4.2 Can Legalism Only Treat Symptoms?
5 An Alternative Programme
6 Conclusion
Cynicism as a Modus of Political Agency: Can It Speak to International Law?
1 Introduction
2 What Cynicism Is Not or Should Not Be
3 What Cynicism Has Been
3.1 Ancient Cynicism
3.2 Modern Cynicism
3.3 Cynicism After the Frankfurt School
4 Cynicism in International Law?
Part II: Cynical Actors in International Law
The International Law Commission as a Club of Cynics? Originalism and Legalism in the Commission´s Contemporary Work
1 Introduction
2 The International Law Commission
3 Legalism
3.1 Philosophical Legalism
3.2 Ideological Legalism
3.3 Legalism and International Law
4 Originalism
5 Legalism and Originalism in the Work of the Commission
5.1 Codification and Progressive Development
5.2 Peremptory Norms of General International Law (Jus Cogens)
5.3 Immunity of State Officials from Foreign Criminal Jurisdiction
5.4 Protection of the Atmosphere
6 `What Kind of Character Will That Commission Have?´
The Added Value of the International Law Commission and Its Future Role in the Progressive Development and Codification of Int...
1 The International Law Commission as a Club of Cynics?
2 The Mandate of Progressive Development and Codification of International Law
3 The Added Value of the International Law Commission and Its Future Role
From Speaking Truth to Power to Speaking Power´s Truth: Transnational Judicial Activism in an Increasingly Illiberal World
1 Introduction
2 Constitutionalism and Judicialisation in the Contemporary Cosmopolitan Imagination
3 The Sleep of Reason Produces Monsters: Backlash(es) Against International Law
3.1 Us Against Them: Cosmopolitanism vs. Nationalism
3.2 Abusive Constitutionalism in International Law
3.2.1 Genocide Denial at the ECtHR
3.2.2 Abortion in Colombia
3.2.3 Civil Society Interventions on the Right to Life
3.2.4 The New Trump Commission on Unalienable Rights
4 Concluding Remarks: Fox Hunters and International Law
From Judicialisation to Politicisation? A Response to Daniel Quiroga-Villamarín by an Academic Turned Practitioner
1 Introduction: Cosmopolitan Activism and Judicial Cynicism
2 Cosmopolitans and Judicialisation in the 1990s
3 The Examples of Backlash
4 Conclusion: Judicial Power and Democracy
Oceans of Cynicism? Norm-Genesis, Lawfare and the South China Sea Arbitration Case
1 Unfolding the Problem: An Introduction
2 Norm-Genesis: What Is Land Territory and Why Does It Matter?
2.1 Customary International Law: Matters of Sovereignty and History
2.2 United Nations Convention on the Law of the Sea: Matters of Maritime Zones and the Legal Status of Maritime Features
3 The Ambiguous Role of International Law in the South China Sea Dispute
3.1 Lessons from History: Legal Warfare as Part of Chinas Three Warfares Doctrine
3.2 The South China Sea Arbitration: Legal Warfare as Lawfare?
4 Synthesis: How China´s Lawfare Blurred the Lines between the United Nations Convention on the Law of the Seas and the Coloni...
5 Closing Thoughts: Cynicism and Lawfare
Peace Through Law? The Role of the Law of the Sea Convention Put into Question
1 Introduction
2 The Inherent Limits of the United Nations Convention on the Law of the Sea
3 The Genesis of the United Nations Convention on the Law of the Sea: Expressions of Post-Colonial Hegemony?
4 Consent as the Basis of Modern Law of the Sea
5 Different Interpretations, Abuse of Law and `Lawfare´
6 Concluding Remarks
Part III: Cynicism in European Law and Sub-Fields of Public International Law
Assessing the Strategic Use of the EU Preliminary Ruling Procedure by National Courts
1 Introduction
2 Strategic Preliminary References
3 The Conflict with the Spirit of the Preliminary Ruling Procedure
4 Empirical Case Study: The Netherlands
4.1 Strategic Preliminary References in Practice
4.2 Motives Behind Strategic Preliminary References
5 The Cynicism in Strategic Preliminary References
In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism
1 Setting the Stage: An Introduction to Cynicism in the Area of Economic and Social Rights
2 What Lies Beneath: A Cynical Gaze upon Objections to Recognition and Implementation of Economic and Social Rights in the Ear...
3 Preaching Water and Drinking Wine: The Cynical Use of International and National (Constitutional) Law Norms to Justify State...
3.1 Reading Between the Lines: Cynicism in the Wording of the ICESCR Itself?
3.2 Reclaiming the National Back from the International: Constitutional Supremacy at the Cost of Economic and Social Rights?
4 When More Means Less: The Increased Justiciability of Economic and Social Rights as a Sign of Less Cynicism
In International Law We Shall Trust: (Even in) The Case of Economic and Social Rights
1 Introduction
2 Cynicism as a Negative, Ridiculing and Destructive Mindset
3 Limited Commitment: Words and Separation of Powers Matter
3.1 The Obligations of States and the Wording of the International Covenant on Economic, Social and Cultural Rights
3.2 Justiciability of Economic and Social Rights and the Separation of Powers Doctrine
3.3 A Cynical Treaty? Limited Commitment but Commitment Nevertheless
4 How to Fight Cynicism? Two Ways Out
4.1 The Principle of Good Faith
4.2 Legal Vagueness and Academic and (Quasi-)Judicial Clarification of Disputed Terms and Concepts
4.2.1 Justiciability of Economic and Social Rights and the Counter-Majoritarian Difficulty
4.2.2 (Lacking) Clarity of Substantive Norms and the Use of Quantitative Methods
Indicators and Benchmarks: `Progressive Realization´, Maximum Available Resources´, and `Minimum Core Obligations´
Public Budget Analysis: `Maximum Available Resources´
A Very Short Normative Critique of Economic and Political Science Approaches to Clarify Legal Norms
5 Conclusion: Keep on Trusting in International Law
All Is Fair in Law and War? Legal Cynicism in the Israeli-Palestinian Conflict
1 Introduction
2 International Law, Legal Cynicism, and the Israeli-Palestinian Conflict
3 The 2018 Hostilities Along the Israel-Gaza Border
3.1 Competing Narratives
3.2 Domestic Fact-Finding Efforts
3.3 International Fact-Finding Efforts
3.4 The Israeli Response
3.5 The Centrality of International Law and the War Crimes Label in the Controversy About the Israeli Actions
4 The Impact of War Crimes Framing on Beliefs About Wartime Events
4.1 The Framing Effects of the War Crimes Terminology
4.2 The Experimental Design
4.3 Results
4.3.1 War Crimes Framing Triggers Backlash and Denial
4.3.2 War Crimes Framing Triggers Anger; Does Not Influence Guilt or Empathy
5 Discussion
Cynicism? Yes, Please! Embracing Cynicism at the International Criminal Court
1 A Fragmented Concept of Cynicism
2 Elevated Levels of Cynicism
2.1 Cynicism as Post-Idealism
2.2 Cynicism as the Gap Between Expectations and Reality
2.3 The Idea of Compromise
3 Manifestations of International Criminal Cynicism
3.1 Dismissive Cynicism
3.2 Abusive Cynicism
3.3 Institutional Cynicism
3.4 Discursive Cynicism
4 The Chances of Embracing Cynicism
4.1 Exposure and Disarmament
4.2 Authority and Solidarity
4.3 Demystification and Coming of Age
5 Conclusion
Part IV: Cynicism and Abuse of Rights
Abuse of Right in International Law: A Roman Law Analogy
1 Introduction
2 The Roman Tradition
2.1 The Rigidity of Roman Law
2.2 Aequitas and Bona Fides
2.3 A Prohibition of the Abuse of Right?
3 The Prohibition of Abuse of Right in International Law
3.1 The Basis of Abuse of Right in International Law
3.2 Can the Prohibition of Abuse of Right Mask Cynicism?
4 Conclusion
Abuse of Rights: From Roman Law to International Law? Comments on the Contribution by Andrea Faraci and Luigi Lonardo
1 Reconstruction of the Main Argument
2 The Roman Law Analogy: A Need to Overcome Rigid Formalism?
3 Some Concluding Observations
Cynicism and Nationality Planning in International Investment Law
1 Introduction
2 Corporate Nationality and the Practice of Nationality Planning
3 The Notion of `Cynicism´ and Its Relevance for Nationality Planning
4 The Principle of `Abuse of Process´ as an Instrument to Curb Nationality Planning
4.1 Overview of `Abuse of Process´ in Investment Arbitration
4.2 Criteria in Applying `Abuse of Process´ to Nationality Planning
5 Conclusion
(New) Ways of Combating Abuse and Circumvention of European Law on the Example of Tax Evasion and Tax Avoidance
1 Introduction
1.1 Background and Definitions
1.2 Colliding Interests and Problems
2 Development of the European Concept of Abuse of Rights
2.1 General Legal Principle
2.2 Abuse of Rights as Defined in the Context of Fundamental Freedoms: The Cadbury Criteria
2.2.1 Applicability of the Fundamental Freedoms
2.2.2 Justification for an Encroachment
2.3 Abuse of Rights as Defined in the Context of Secondary Legislation: The Halifax Criteria
2.3.1 Unwritten Protection Against Abuse
2.3.2 General Anti-Abuse Rules
Autonomous Interpretation
The Halifax Criteria as the Standard for a General Anti-Abuse Rule
Article 6 Anti-Tax-Avoidance-Directive
Halifax Meets Cadbury: Eqiom
The Abuse Concept Post Eqiom
3 Conclusion and Outlook
Part V: Concluding Observations
Cynicism as an Analytical Lense for International Law? Concluding Observations
1 The Limits of an Analytical Category
1.1 An Elusive Notion
1.2 An Added Value?
1.3 A Legitimacy Claim
1.4 An Empty Signifier
2 Cynical International Law?
3 Cynical Uses of International Law?
4 The Relevance of a Political Emotion
5 No Need to Be Cynical in International Law!
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

Cynical International Law?: Abuse and Circumvention in Public International and European Law
 3662621274, 9783662621271

  • 0 0 0
  • Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up
File loading please wait...
Recommend Papers