The Rule of Law at the National and International Levels: Contestations and Deference 9781849466677, 9781474202879, 9781782256151

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THE RULE OF LAW AT THE NATIONAL AND INTERNATIONAL LEVELS This book aims to enhance understanding of the interactions between the international and national rule of law. It demonstrates that the international rule of law is not merely about ensuring national compliance with international law. International law and institutions (eg, international human rights treaty-monitoring bodies and human rights courts) respond to national contestations and show deference to the national rule of law. While this might come at the expense of the certainty of international law, it suggests that the international rule of law can allow for flexibility, national diversity and pluralism. The essays in this volume are set against the background of increasing conflict between international and national legal norms. Moreover the book shows that international law and institutions do not always command blind national obedience to international law, but incorporate a process of adjustment and deference to national law and policies that are protected by the rule of law at the national level. Volume 56 in the series Studies in International Law

Studies in International Law Recent titles in this series Integration at the Border: The Dutch Act on Integration Abroad and International Immigration Law Karin de Vries An Equitable Framework for Humanitarian Intervention Ciarán Burke Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice Jure Vidmar International Law and the Construction of the Liberal Peace Russell Buchan The OIC, the UN, and Counter-Terrorism Law-Making: Conflicting or Cooperative Legal Orders? Katja Samuel Statelessness: The Enigma of the International Community William E Conklin The Reception of Asylum Seekers under International Law: Between Sovereignty and Equality Lieneke Slingenberg International Law and Child Soldiers Gus Waschefort The Contractual Nature of the Optional Clause Gunnar Törber Non-State Actors in International Law Edited by Math Noortmann, August Reinisch and Cedric Ryngaert For the complete list of titles in this series, see ‘Studies in International Law’ link at www.hartpub.co.uk/books/series.asp

The Rule of Law at the National and International Levels Contestations and Deference

Edited by

Machiko Kanetake and André Nollkaemper

OXFORD AND PORTLAND, OREGON 2016

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors 2016 The have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available Library of Congress Cataloging-in-Publication Data Names: Kanetake, Machiko, editor.  |  Nollkaemper, André, editor. Title: The rule of law at the national and international levels : contestations and deference / edited by Machiko Kanetake and Andr?e Nollkaemper. Description: Oxford ; Portland, Oregon : Hart Publishing Ltd, 2016.  |  Series: Studies in international law ; volume 56  |  “The contributions contained in the present volume were presented originally in an international seminar in March 2013 hosted by the HiiL and the Amsterdam Center for International Law (ACIL).”  |  Includes bibliographical references and index. Identifiers: LCCN 2015045796 (print)  |  LCCN 2015046374 (ebook)  |  ISBN 9781849466677 (hardback : alk. paper)  |  ISBN 9781782256168 (Epub) Subjects: LCSH: Rule of law—Congresses.  |  International law and human rights—Congresses.  |  International and municipal law—Congresses. Classification: LCC K3171.A6 R848 2016 (print)  |  LCC K3171.A6 (ebook)  |  DDC 340/.11—dc23 LC record available at http://lccn.loc.gov/2015045796 ISBN: 978-1-78225-615-1 Typeset by Compuscript Ltd, Shannon

Preface and Acknowledgements The present volume is the result of a multi-year research project sponsored by the Hague Institute for the Internationalisation of Law (HiiL), which aims to explore the processes and consequences of the ‘internationalisation of the rule of law’. The outcome of the project’s first phase was published as Michael Zürn, André Nollkaemper, and Randall Peerenboom (eds), Rule of Law Dynamics: In an Era of International and Transnational Governance (Cambridge University Press, 2012). Building on this first volume, the present volume contains the outcome of the second phase of the project. Its aim is to identify and assess some of the patterns and consequences emerging from in the interactions between the national and international rule of law. The contributions contained in the present volume were presented originally in an international seminar in March 2013 hosted by the HiiL and the Amsterdam Center for International Law (ACIL). The papers presented at the international seminar were selected through a rigorous process out of over 100 submissions which the ACIL had received. The analysis and argument presented in the present volume also benefited from the discussions within a research group (called ‘Interfaces’) organised within the ACIL. The editors would like to thank the HiiL for supporting the research project which generated the present volume. In particular, the editors are grateful for Morly Frishman of the HiiL for his enthusiastic support in organising the aforementioned seminar and other related events and in enriching and disseminating the outcomes of the project. The editors would also like to thank Rosanne van Alebeek, Theresa Reinold, Ingo Venzke, Michael Zürn, many other colleagues of the ACIL, and the participants to the international seminar for their advice and help in the process of developing the present volume.

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Contents Preface and Acknowledgements����������������������������������������������������������������������������v List of Contributors���������������������������������������������������������������������������������������������ix Introduction and Framework Introduction������������������������������������������������������������������������������������������������������� 3 André Nollkaemper 1. The Interfaces Between the National and International Rule of Law: A Framework Paper�������������������������������� 11 Machiko Kanetake Part I: National Contestations in the Critical Revision of the International Rule of Law 2. Judicial Strategies and their Impact on the Development of the International Rule of Law��������������������������������� 45 Veronika Fikfak 3. The Development of the Immunities of International Organisations in Response to Domestic Contestations������������������� 67 Mateja Steinbrück Platiše 4. Domestic Review of Treaty-Based International Investment Awards: Effects of the Metalclad Judgment of the British Columbia Supreme Court��������������������������������������������� 99 Shotaro Hamamoto 5. National Contestation of International Investment Law and the International Rule of Law��������������������������������������������� 115 Prabhash Ranjan 6. Domestic Non-Judicial Institutions in the Development of the International Rule of Law������������������������������� 143 René Urueña 7. Interactions Between Domestic Social Norms and International Law over Trade Dispute Resolution�������������������������� 171 Ji Li

viii  Contents Part II: International Deference to the National Legal Order 8. The Rule of Law Dimensions of Dialogues Between National Courts and Strasbourg�������������������������������������� 201 Birgit Peters 9. Three Interpretive Constraints on the European Court of Human Rights���������������������������������������������������������������������� 227 Shai Dothan 10. Human Rights, the Margin of Appreciation, and the International Rule of Law��������������������������������������������������� 247 Andrew Legg 11. Subsidiarity in the Practice of International Courts��������������������� 269 Machiko Kanetake 12. Revisiting the Reservations Dialogue: Negotiating Diversity while Preserving Universality Through Human Rights Law������������������������������������������������������������������������������ 289 Ekaterina Yahyaoui Krivenko 13. Universality, Diversity, and Legal Certainty: Cultural Diversity in the Dialogue Between the CEDAW and States Parties����������������������������������������������������������������� 321 Yvonne Donders and Vincent Vleugel 14. Domestic Courts Under Scrutiny: The Rule of Law as a Standard (of Deference) in Investor-State Arbitration��������������������������������������������������������������������������������������������� 353 Hege Elisabeth Kjos 15. The Rule of Law at the National and International Levels in Post-Conflict Peace Agreements�������������������������������������� 383 Jennifer Easterday 16. The Rule of Law and the Division of Labour Between National and International Law: The Case of International Energy Relations����������������������������������� 409 Stephan W Schill Conclusion 17. The International Rule of Law in the Cycle of Contestations and Deference������������������������������������������������������������� 445 Machiko Kanetake and André Nollkaemper Index����������������������������������������������������������������������������������������������������������������� 461

List of Contributors Yvonne Donders is Professor of International Human Rights and Cultural Diversity at the University of Amsterdam. She is Head of the Department of International and European Law. She received her PhD from Maastricht University. Before her current position, she was Executive Director of the Amsterdam Center for International Law (ACIL) and Programme Specialist on Economic, Social and Cultural Rights in the Division of Human Rights at UNESCO’s Secretariat in Paris. She is currently member of the editorial board of the Netherlands Quarterly of Human Rights, member of the National Commission for UNESCO, member of the Human Rights Committee of the Advisory Council on International Affairs and member of the European Expert Network on Culture (EENC). Shai Dothan is an Associate Professor of International and Public Law at the University of Copenhagen Faculty of Law affiliated with iCourts. Previously, he was a Senior Researcher at the Global Trust Project, Tel Aviv University Faculty of Law and an Adjunct Professor at the Hebrew University of Jerusalem Faculty of Law. He received his PhD, LLM, and LLB from Tel Aviv University Faculty of Law and has previously been a Post Doc at the University of Chicago and the Hebrew University. He is the author of Reputation and Judicial Tactics: A Theory of National and International Courts (Cambridge University Press, 2014). Jennifer Easterday is a founder and Executive Director of JustPeace Labs. She previously was a PhD researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, University of Leiden. She received her JD from the University of California, Berkeley School of Law and is a member of the California State Bar. She has worked and consulted for various international NGOs, including Open Society Justice Initiative, International Criminal Law Services, and the UC Berkeley War Crimes Studies Center. She is a co-editor of Jus Post Bellum: Mapping the Normative Foundations (Oxford University Press, 2014). Veronika Fikfak is a Fellow and Lecturer at the University of Cambridge and an ESRC Future Research Leader. She holds a Magister Juris (MJur) and a DPhil in Public International and Constitutional Law from the University of Oxford. Dr Fikfak previously worked at the International Court of Justice, the United Nations, the Law Commission of England and Wales, and the European Court of Human Rights. She is an Associate Member of the Lauterpacht Centre for International Law and of Cambridge’s Centre

x  List of Contributors for Public Law. Her monograph on the role of domestic courts in relation to international law is forthcoming with Cambridge University Press (International and Comparative Law Series, 2016). Shotaro Hamamoto is a Professor at the Faculty of Law of Kyoto University. His prior academic appointments include teaching positions in Japan (Professor, Kobe University, 2006–9) and abroad (Professeur invité, Université Paris I, 2009 and Sciences Po Paris, 2012). He has also served as an advocate for the Japanese Government in the Whaling in the Antarctic Case (Australia v Japan, ICJ) and Hoshinmaru and Tomimaru Cases (Japan v Russia, ITLOS, 2007). He has served as the Japanese Representative to the UNCITRAL WGII (Arbitration/Conciliation) (2010–2015) and to the OECD Investment Committee (2011); as an Expert on the Advisory Group on Legal Issues, Monitoring Group of the Anti-Doping Convention of the Council of Europe (2010–2012); and as an Arbitrator on the Japan Sports Arbitration Agency (2008–). Machiko Kanetake is an Assistant Professor of Public International Law at Utrecht University. Machiko received her PhD from Kyoto University, her LLM at the London School of Economics and Political Science (LSE), and her MA in Law from the University of Sheffield. She was also appointed a Hauser Visiting Doctoral Researcher (2010–11) of the Global Fellows Program at New York University (NYU) School of Law, a Visiting Researcher (2012) of the University of Sydney, a Visiting Fellow (2014– 2015) at the Human Rights Program, Harvard Law School, and a Visiting Fellow (2015) at the Transnational Law Institute, the Dickson Poon School of Law, King’s College London. Hege Elisabeth Kjos is an Assistant Professor at the University of Amsterdam. She is Deputy General Editor of Arbitration International (Oxford University Press) and serves on the Board of Reporters for the Institute for Transnational Arbitration (country reporter for Norway) and on the Advisory Board of the Brill Research Perspectives: International Investment Arbitration. She assists in research for arbitrators and experts in investor-state arbitrations. She was previously employed at the Legal Department of the World Bank in Washington DC. Dr Kjos holds a Juris Doctor degree, a Cand Mag degree, and a Bachelor of Arts degree following studies in the United States, the Netherlands, France and Norway. She received her PhD from the University of Amsterdam, and is the author of the book Applicable Law in Investor-State Arbitration: The Interplay between National and International Law (Oxford University Press, 2013). Andrew Legg is a barrister, practising from Essex Court Chambers in London, with a broad practice in commercial law, public law and international law. He received his DPhil from the University of Oxford, where he taught law for four years and lectured on the European Human Rights

List of Contributors xi Law course. He is the author of The Margin of Appreciation in International Human Rights Law (Oxford University Press, 2012). Ji Li is an Associate Professor of Law at Rutgers Law School. He received his PhD in Political Science from Northwestern University, and his JD from Yale Law School, where he was an Olin Fellow in Law, Economics and Public Policy and an editor of the Yale Human Rights and Development Law Journal. Before joining the faculty at Rutgers, he worked as an associate at the New York office of an international law firm, practising corporate and tax law. André Nollkaemper is Professor of Public International Law and Director of the Amsterdam Center for Interrnational Law at the Faculty of Law of the University of Amsterdam. He is also (external) adviser to the Minister of Foreign Affairs of the Netherlands, Member of the Permanent Court of Arbitration, President of the European Society of International Law and member of the Royal Netherlands Academy of Arts and Sciences of the Netherlands. Previously, he was a member of the Advisory Commission on Public International Law of the Netherlands and counsel at Böhler, attorneys in Amsterdam. His practical experience includes cases before the European Court on Human Rights, the Special Court for Sierra Leone, the International Criminal Tribunal for the Former Yugoslavia, the Extraordinary Chambers in the courts of Cambodia, courts of the Netherlands and consultancy for a variety of international and national organisations. Birgit Peters is Assistant Professor of Public Law, International Law and European Law at the Faculty of Law of the University of Rostock. She holds a PhD from Humboldt-University Berlin, and an LLM from the University of London. Previously, she was a Postdoctoral Fellow and Lecturer at the Institute for Environmental and Planning Law at the University of Münster, at the Centre for European Environmental Law of the University of Bremen, and at the ‘Should States Ratify Human Rights Conventions?’ Project at the Norwegian Centre for Human Rights, University of Oslo. She recently edited Constituting Europe: The European Court of Human Rights in a Global, European and National Context (edited with Andreas Follesdal and Geir Ulfstein (Cambridge University Press, 2013). Prabhash Ranjan is an Assistant Professor at the Faculty of Law, South Asian University, New Delhi. He received his PhD in Law from King’s College London, where he studied with the benefit of a King’s College London School of Law Doctoral Scholarship. He studied at the School of Oriental and African Studies (SOAS) and the University College London (UCL) for an LLM, and passed with distinction as a British Chevening scholar. Prabhash also holds a BA (Hons) in Economics and an LLB from the University of Delhi.

xii  List of Contributors Stephan Schill is Professor of International and Economic Law and Governance at the Faculty of Law of the University of Amsterdam. He is Principal Investigator in a European Research Council-funded project on ‘Transnational Public-Private Arbitration as Global Regulatory Governance’. He is admitted to the bar in Germany and New York, has acted as counsel before the European Court of Human Rights, and is a Member of the ICSID List of Conciliators. He is the Editor-in-Chief of the Journal of World Investment and Trade and the author of various books and numerous articles on international investment law and arbitration. Mateja Steinbrück Platiše is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and previously a Marie Curie Fellow of the Institute. She is also Lecturer at the Law Faculty of the University of Heidelberg, where she is teaching on human rights. Previously, she was appointed as Lecturer at the Law Faculty of the University of Hamburg and at the Law Faculty of the Catholic University of Lille. Before joining the Max Planck Institute, she worked for several years as a Legal Officer at the European Court of Human Rights. Her other practical experience includes clerkship at the Legal Liaison Office of the United Nations Office in Geneva. After her Master Studies in international law at the University of Ljubljana, she obtained her PhD degree from the same university. She also holds an MJur degree from the University of Oxford, where she specialised in European and Comparative Law. Rene Urueña is Associate Professor and Director of the International Law Program at the Universidad de Los Andes (Bogota, Colombia). He earned his doctorate in law at the University of Helsinki (eximia cum laude), and holds a postgraduate degree in economics from the Universidad de Los Andes. He has been a research fellow at the Institute of Law and Justice at New York University, a Docent of the Institute of Global Law and Policy at Harvard Law School, and a visiting Associate Professor of International Law at the University of Utah. He has twice served as expert witness before the Inter-American Court of Human Rights and is the author of No Citizens Here: Global Subjects and Participation in International Law (Martinus Nijhoff, 2012). Vincent Vleugel is a PhD Researcher at the Faculty of Law of the University of Amsterdam. He holds an LLM degree in Public International Law from the University of Amsterdam, and an MSc degree in International Business from Tilburg University. He previously worked as a policy officer at the Human Rights Department of the Dutch Ministry of Foreign Affairs, with a focus on business and human rights. Ekaterina Yahyaoui Krivenko is a Lecturer and LLM Programme Director at the Irish Centre for Human Rights (ICHR), School of Law, at the National University of Ireland, Galway. She is also an associate researcher

List of Contributors xiii at the Hans and Tamara Oppenheimer Chair in International Law at McGill University, Montreal, Canada. Previously, she taught at the Faculty of Law, University of Montreal. Ekaterina Yahyaoui holds a BA from Geneva University (Switzerland), an LLM from the Albert-Ludwigs University (Freiburg i Br, Germany), a DES in international relations and a PhD in international law from the Graduate Institute of International Studies (Geneva). She leads the project ‘International Protection of Human Rights as a Constitutional Issue: Promises, Problems and Prospects’ funded by the EU FP7 Marie Curie Career Integration Grant.

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Introduction and Framework

2 

Introduction ANDRÉ NOLLKAEMPER

I.  BACKGROUND: RULE OF LAW DYNAMICS

T

HE PRESENT VOLUME builds on the earlier volume Rule of Law Dynamics in an Era of International and Transnational Governance (‘Rule of Law Dynamics’).1 That volume argued that the interaction between international and domestic law can be conceptualised as a two-way relationship. On the one hand, international law influences the contents and practice of the rule of law at the domestic level. On the other hand, the domestic rule of law standards and practices influence the development of the rule of law at the international level. More in particular, these dynamics involve three distinct but interrelated processes: promotion, diffusion, and conversion.2 The promotion perspective looks at strategies and programs of states and organisations to promote the rule of law elsewhere. One important dimension of such rule of law promotion is the process whereby international law, and more concretely, international institutions, seek to promote the rule of law at the national level.3 The conversion perspective emphasises the decisive role of reception of international legal concepts at the national level, including the transfer of a concept, the translation into the local context, but also in some cases the rejection of the norms. It asks questions about the ways in which concepts are transformed in the process of translation and about the sources of this transformation or their rejection. Of particular relevance are normative conflicts between international law and domestic law or, more generally, between international law and the national rule of law. After all, rule of law promotion does not occur in a vacuum. Rule of law reforms often conflict with, and tend to displace, existing laws. 1  Michael Zürn, André Nollkaemper, and Randall Peerenboom (eds), Rule of Law ­Dynamics: In an Era of International and Transnational Governance (Cambridge, Cambridge University Press, 2012). 2  For more details about these processes, Michael Zürn, André Nollkaemper, and Randall Peerenboom, ‘Introduction: Rule of Law Dynamics in an Era of International and Transnational Governance’ in Zürn, Nollkaemper, and Peerenboom (ibid) 1. 3  See Helmut Philipp Aust and Georg Nolte, ‘International Law and the Rule of Law at the National Level’ in Zürn, Nollkaemper, and Peerenboom (ibid) 48.

4  André Nollkaemper The diffusion perspective focuses on the dissemination of the rule of law concept and asks about the causes and mechanisms that lead to this development. A key manifestation of diffusion is the boomerang effect. The reception and contestation of international norms at domestic level may create a feedback loop to the international level; in particular, to the institutions involved in rule of law promotion. In most cases, this process is not controlled by one actor or one set of actors but results from the interplay of a multiplicity of actors and forces, and in that sense, are themselves interactive and iterative processes with intended and unintended effects. These upward effects of reception and conversion in themselves can be seen as rule of law promotion—one that increasingly targets international organisations—and in that respect there is no hard distinction between diffusion and promotion. This boomerang effect allows us to conceptualise the relationship between the international rule of law and national law in a more complex way, beyond the conception in which the international rule of law would just require compliance with the prescriptions of international law. It is precisely the expectation of full compliance that may meet with resistance and contestation at the national level. Arguably, such resistance and contestation subsequently effects how we understand the rule of law at the international level. This process does not mean that, under influence of national conceptions of the rule of law and of feedback loops, the international rule of law becomes a copy of, or even remotely looks like, the national rule of law. The rule of law at the international level is a completely different phenomenon which is to be adjusted to the specific nature of the international legal order.4 However, it does mean that international law itself, and indeed our understanding of the international rule of law, should take into account the interactive process with the national legal order. This may take a diversity of forms however, including both an increasing influence of rule of law principles in international law, and recognition of deference and diversity at the national level. Rule of Law Dynamics concluded that to better understand the dynamics of rule of law development, more attention must be paid to the interaction between rule of law promotion, rule of law diffusion, and rule of law conversion. Further research could make us better understand the causal mechanisms that lead states, international organisations, and other transnational actors to adopt and comply with rule of law principles, and how that process may be supported.

4  See, eg, Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22 European Journal of International Law 315.

Introduction 5 II.  THEME OF THE PRESENT VOLUME

It is here where the present volume further develops the themes of Rule of Law Dynamics. While international legal scholarship has produced extensive studies as to how the national legal order understands, contests, and accommodates international law,5 much less recognised is the international perspective; namely, how the international legal order understands, contests, and accommodates the national reception of international law. The ‘international’ perspective allows us to situate the national legal order not merely as the venue for implementation but also as the agent for the critical revision of international law and of the universality of policies behind it. We address the critical question as to how the promotion of the rule of law, based on the standards of international law, copes with a wide variety of forms of resistance from the targets of the promotion of the rule of law, and whether international organisations have altered their strategies, programs, and practices to reflect resistance and contestation. The present volume is induced by the fact that the increasing subject matter overlap between international and national law has led to an increasing interaction between decisions of international and national institutions. International law and institutions prescribe standards concerning, for instance, human rights, crimes, trade, and investment, which are likewise regulated by national law. The national implementation of those standards is reviewed by international institutions, such as human rights courts, criminal tribunals, investment arbitration tribunals, and nonjudicial treaty-monitoring bodies. In turn, that very process of review, and the outcomes thereof, may be reviewed and contested at the national level. This volume focuses in particular on those decisions of national actors that seek to protect, in the process of performance of international obligations, the national rule of law, and on how that may influence the content and development of the international rule of law. Practices discussed in this volume include decisions of domestic courts that contest decisions of international institutions; decisions of domestic courts to curtail immunities of international organisations; and domestic review of investment awards. The central claim of the volume is that interactions between international and national spheres demonstrate that the national legal order is not merely a venue for implementation of international obligations, but also is an agent for the development and revision of the international rule of law. 5  See, eg, David Sloss (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge; New York, Cambridge University Press, 2009); Dinah Shelton (ed), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (Oxford, Oxford University Press, 2011); August Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (New York, NY, Oxford University Press, 2013).

6  André Nollkaemper There are wide differences in the degree to which domestic practices indeed challenge international laws or international decisions. In some states, domestic judicial and non-judicial actors grant precedence to international norms or seek to harmonise such prescriptions through the process of interpretation. However, in other states, actors respond to those differences in a more confrontational manner, and directly or indirectly contest international law, including the decisions of international institutions. Ahmed and Kadi in relation to the UN’s listing decisions,6 Medellin on the avoidance of the ICJ decision,7 and Horncastle against the jurisprudence of the European Court of Human Rights (ECtHR)8 are some prominent examples. This collection captures these domestic contestations, and the international responses to them, not in terms of fundamental conflicts between international and national law, but rather as an essential component of the ‘international rule of law’. The conventional understanding about the international rule of law tends to emphasise the need for national compliance, and would consider such national practices as problematic from the perspective of the international rule of law. For instance, UN SecretaryGeneral Annan in his March 2012 report, which was prepared for the highlevel meeting of the General Assembly held on 24 September 2012, almost equated national ‘compliance’ with the achievement of the international rule of law.9 Yet the relationships between the international and national rule of law are much more nuanced and interactive. The present book exposes that international law and institutions do not always command blind national obedience to international law, but incorporate the process of adjustment and deference to national law and policies that are protected by the rule of law at the national level. While this flexibility might come at the expense of the certainty of international law, the practice suggests that the international rule of law in relation to the national legal order seems to allow flexibility, national diversity, and pluralism.

6  HM Treasury v Mohammed Jabar Ahmed and Others; HM Treasury v Mohammed al-Ghabra; R (Hari El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2 (UK Supreme Court, Judgment of 27 Jan 2010); Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-06351 (Court of Justice, Judgment of 3 Sept 2008); Joined cases C-584/10 P, C-593/10 P and C-595/10 P Kadi v European Commission [2013] ECR (Court of Justice, Judgment of 18 July 2013). 7  Medellín v Texas (2008) 128 S Ct 1346 (US Supreme Court, Judgment of 25 March 2008). 8  R v Horncastle and Others [2009] UKSC 14 (UK Supreme Court, 9 Dec 2009). 9  Report of the Secretary-General, ‘Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels’, UN Doc A/66/749 (16 March 2012).

Introduction 7 III. ROADMAP

We address the questions in 16 substantive chapters and a conclusion. Chapter one, by Machiko Kanetake, will further develop the theoretical framework on the interfaces between the national and the international rule of law. Thereafter, the volume comprises two parts. Part I consists of chapters that address national contestations. Part II discusses practices of international institutions that show deference to the national rule of law. In chapter two, Veronika Fikfak discusses different techniques employed by domestic courts to contest the decisions of international organisations and international courts. She argues that domestic contestations facilitate a dialogue between domestic and international institutions, and strengthen, as opposed to undermine, the international rule of law and the foundations for an effective international legal order. In chapter three, Mateja Steinbrück Platiše examines domestic judicial contestations and their impact on the international rule of law within the specific context of jurisdictional immunities of international organisations. The chapter analyses how domestic courts have resisted and restricted the grant of immunities on international organisations, and how the jurisprudence of international courts and political initiatives taken by international organisations have incrementally responded to domestic judicial contestations. For instance, domestic contestations have incrementally contributed to the development of alternative dispute settlement mechanisms; in particular, within international organisations. In chapter four, Shotaro Hamamoto discusses the domestic review of investment arbitration awards. The chapter argues that domestic courts’ contestation can be normatively justified by investment awards, and explores how domestic contestations can affect the legitimacy of international investment law. In chapter five, Prabhash Ranjan analyses the role of non-judicial national contestations in the context of international investment law regimes. He argues that while such national contestation may appear to undermine international rule of law reflected in bilateral investment treaties, it in fact has triggered a debate on how to re-craft such treaties in a manner that balances investment protection with the host states’ right to regulate in public interest. It has also activated the global community to develop innovative solutions to strengthen the adjudicative process, which will result in a more robust international investment law reflecting the principles of international rule of law. In chapter six, Rene Urueña examines the roles of domestic nonjudicial institutions in the development of the international rule of law. The chapter argues that such institutions can be seen as agents for the revision of the international rule of law; for instance, by acting as norm entrepreneurs, pushing for the development of new international norms.

8  André Nollkaemper In chapter seven, Ji Li discusses wider social norms that underlie domestic contestations against international law and institutions within the specific context of trade dispute resolution. He argues that the state is no more than a metaphoric actor in international affairs and that we should recognise that for resolving inter-state trade disputes, the real actors are government officials embedded in their respective social and cultural backgrounds. This chapter argues that domestic social norms that govern the choice of dispute resolution mechanisms play a significant role in determining how states resolve trade disputes, formally or informally. In chapter eight, the first chapter of part II, Birgit Peters discusses various conversations between the ECtHR and national courts on the implementation and interpretation of the European Convention on Human Rights (ECHR). The chapter highlights the effects of the dialogue between international and national judges on the jurisprudential development of the ECHR and demonstrates that domestic courts’ contestation and international courts’ responses have been incrementally formalised and ­methodised within the context of the ECHR. In chapter nine, Shai Dothan analyses constraints which seem to circumscribe the interpretive discretion of the ECtHR. These suggest that the Court should show deference to the policies of the state whose behaviour is scrutinised; that it should limit its demands from that state to the obligations it took upon itself when it ratified the EcHR; and it should follow the consensual view within Europe, the so-called ‘emerging consensus’. Dothan argues that if the ECtHR would apply these interpretive constraints, it would serve the values of the international rule of law and it would show proper deference to the national rule of law. In chapter ten, Andrew Legg focuses on the margin of appreciation which fosters a dialogue between domestic and international institutions. The doctrine of the margin of appreciation is a key to the interface between international and national legal orders in the sphere of human rights law. This chapter considers the impact that the margin of appreciation has for different conceptions of the international rule of law. In chapter eleven, Machiko Kanetake analyses the notion of subsidiarity as a key component that sustains a dialogue between domestic and international institutions and thereby develops the international rule of law. It argues that the concept of subsidiarity allows us to assess the practice of international institutions that pay deference to the national rule of law and the political legitimacy behind it. This chapter further assesses whether the idea of subsidiarity contributes to the legitimacy of international institutions and their jurisprudence. In chapter twelve, Ekaterina Yahyaoui Krivenko addresses the question of how international human rights law, and more broadly the international rule of law, preserves national diversity while ensuring the universal standards of human rights and their legal certainty. The chapter

Introduction 9 analyses this tension between the universality and diversity in the specific context of reservations to human rights treaties. In chapter thirteen, Yvonne Donders and Vincent Vleugel explore the interaction between states and the Committee on the Elimination of ­Discrimination against Women (CEDAW) and their relevance for the development of the international rule of law. The chapter analyses to what extent and how the constructive dialogue between the CEDAW and states enables states to reiterate, revisit, or be challenged on the value of particular cultural norms and practices in relation to international human rights, while at the same time progressively developing consensus and certainty about the meaning of these rights. The chapter also discusses whether this process could strengthen the clarity and predictability of international human rights law as a constitutive element of the international rule of law. In chapter fourteen, Hege Elisabeth Kjos analyses how arbitration ­tribunals show deference to domestic court decisions in evaluating those decisions against investment treaty standards in cases brought by foreign investors against host states. The chapter also considers to what extent such deference to national court decisions may contribute to the development of the rule of law. In chapter fifteen, Jennifer Easterday analyses international institutional deference in the context of post-conflict peace agreements. Easterday argues that the imposition of international rule of law on domestic systems vis-à-vis peace agreements can be counter-productive. The ­ ­chapter argues that in the face of the criticisms of neo-colonialism, international institutions cannot simply ‘impose’ their rule of law standards in post-conflict situations. Institutions need to defer to national standards and actors. In chapter sixteen, Stephan Schill demonstrates that the interdependence and mutual deference between international and national law in the areas of international energy law qualifies our understanding of the rule of law. Conceptualising the various interfaces as a division of labour between national and international actors and instruments leads the author to revise the compliance-based understanding about the international rule of law and see it not as embodying the idea of the rule of international law, but as part of an overarching concept of the global rule of law that is formed through interactive processes of mutual control in which national and international law, national and international actors, and different understandings of the rule of law in national and international law relate to one another. The chapter illustrates the idea of division of labour with the interaction of domestic and international law governing international energy relations. Chapter seventeen contains the conclusions of the volume.

10 

1 The Interfaces Between the National and International Rule of Law: A Framework Paper MACHIKO KANETAKE

I. INTRODUCTION

T

HE INTERFACES BETWEEN national and international law create opportunities for mutual self-reflection. The interfaces are the points where the actors, norms, and procedures belonging to respective legal orders connect and interact with one another. The possibilities for interactions and mutual self-reflection have been expanded by the subject matter1 overlap between national and international law. International law prescribes standards concerning, for instance, human rights, crimes, trade, investment, public health, and environmental conservation, which are equally governed by national law.2 International law also enforces those standards through adjudicative venues such as human rights courts, criminal courts and tribunals, and investment arbitration tribunals. National and international law regulating the exercise of authority are no exception to this subject matter overlap. Such an area of law generally represents the idea of the ‘rule of law’ which, in this chapter, is defined as 1  In this chapter, a ‘subject matter’ is not the same as the ‘substance’ of law. The subject matter denotes factual or legal scenarios which sustain the need for legal regulation, and with respect to which law extends its regulatory reach. For instance, environmental degradation or the need for environmental conservation is a broad subject matter of environmental law. The subject matter of the ‘rule of law’ is the exercise of authority by institutions in a society. 2  See, eg, William Twining, Globalisation and Legal Theory (Cambridge, Cambridge University Press, 2000); Joseph HH Weiler, ‘The Geology of International Law: Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547, 559–61. The subject matter extension of international law into domestic regulatory agendas would likely continue, and the future of international law may indeed lie in its ability to guide and direct domestic actors to act in prescribed ways: see Anne-Marie Slaughter and William Burke-White, ‘The Future of International Law Is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327.

12  Machiko Kanetake the regulation of the exercise of authority.3 Both national public law and international human rights law regulate how the government ought to exercise its authority against individuals and entities within its jurisdiction. While the national and ‘international’4 rule of law are both indispensable components of global governance,5 the overlap has given rise to greater chances of conflict between the two branches of the rule of law. For instance, the rights of detained foreign nationals are regulated by domestic public law (constitutional, administrative, and criminal law) and international human rights treaties and the Vienna Convention on Consular Relations.6 The parallel regulation created the series of avoidances and conflicts; the US courts interpreted relevant domestic laws and the Vienna Convention (eg, Breard).7 The interpretation was contested by the International Court of Justice (ICJ) in LaGrand and Avena and by the Inter-American Court of Human Rights (IACtHR),8 which further invited domestic avoidance in Medellin.9 Broadly, the interfaces between the national and international rule of law can be analysed from three different angles: (1) how the national rule of law understands, accepts, and resists the international rule of law; (2) how the international rule of law understands, accepts, and resists the national rule of law; and (3) how the interactions can be understood and evaluated from external (outside) angles. International scholarship has produced 3  For the definition of the rule of law in this chapter, see further section II below. This chapter employs the rule of law as an umbrella notion, which is open to the inclusion of both formal and substantive requirements. This chapter’s approach is inductive: namely, to induce the meaning of the rule of law through legal practices. At the same time, at an analytical level, this chapter presupposes possible formal and substantive elements of the rule of law developed at the domestic level. By relying on the list of possible rule of law elements as an analytical tool, the present chapter attempts to identify and understand the rule of law materialised in the actual legal practices. 4  In this chapter, the ‘international’ rule of law concerns international law regulating the exercise of authority by states, international organisations, and other subjects of international law. It does not matter which relations the rule of law purports to regulate. Namely, the ‘international’ rule of law may purport to regulate not only state-to-state relations, but also government-individual relations, or the relations between international organisations and individuals. 5  As Schill critically argues, national and international law should not be captured only from a confrontational angle; they often serve to achieve common goods: see ch 16 (Schill) of this volume. 6  Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) Art 36. 7 eg, Breard v Greene (1998) 523 U.S. 371 (US Supreme Court, 14 April 1998). 8  LaGrand (Germany v United States) [2001] ICJ Reports 466; Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Reports 12; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) Inter-Am Ct HR (Ser A) no 16 (1999) (Advisory Opinion OC-16/99 of 1 Oct 1999). 9  Sanchez-Llamas v Oregon (2006) 548 U.S. 331 (US Supreme Court, Judgment of 28 June 2006); Medellín v Texas (2008) 128 S Ct 1346 (US Supreme Court, Judgment of 25 March 2008). See also Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena (Mexico v United States of America) [2009] ICJ Reports 3 (Judgment of 19 Jan 2009).

A Framework Paper 13 extensive studies on the national reception of international law, including the international rule of law.10 Much less recognised is the international reception; namely, how the international rule of law understands, accepts, or resists the national rule of law.11 Now that UN General Assembly resolutions have given recognition to the rule of law at both the national and international levels,12 it is worth examining the question of how the international rule of law finds connection with domestic rule of law practices. This chapter and volume aim to capture the interfaces from the international perspective. It considers how the national rule of law has any feedback effect on the international rule of law. This angle of this chapter and volume is a response to the critical need for situating the national legal order, not merely as the venue for implementation, but as the agent for the critical revision of the international rule of law13 and of the universality of policies behind it.14 This chapter, together with other chapters in

10  eg, David Sloss, ‘Domestic Application of Treaties’ in D B Hollis (ed), The Oxford Guide to Treaties (Oxford, Oxford University Press, 2012) 367; David Sloss, ‘Treaty Enforcement in Domestic Courts: A Comparative Analysis’ in D Sloss (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge; New York, Cambridge University Press, 2009) 1; Dinah Shelton (ed), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (Oxford, Oxford University Press, 2011). Domestic cases on the application of international law are most comprehensively collected by the Oxford Reports on International Law in Domestic Courts (ILDC) available at: http://opil.ouplaw. com/home/oril. 11 Among the limited existing studies is Shany’s work on the jurisdictional relations between national and international courts. Shany demonstrates that both international and domestic courts avoid or resolve jurisdictional conflicts by stressing the foundational dualism between international and national judicial decisions, resorting to the jurisdictional hierarchy, or by the application of ‘comity’ which represents the integrative, pragmatic, and flexible approach to the jurisdictional competition: see Yuval Shany, Regulating Jurisdictional Relations Between National and International Courts (Oxford, Oxford University Press, 2007). 12  2005 World Summit Outcome UN Doc A/RES/60/1 (24 Oct 2005) para 134. Since 2006, the General Assembly has adopted resolutions entitled ‘The Rule of Law at the National and International Levels’: see, eg, UN Doc A/RES/61/39 (18 Dec 2006). 13  Benvenisti and Downs argue that national courts’ active application of international law has also signalled to international courts that the national courts are no longer passive recipients of the decisions of the international tribunals but rather equal partners: Eyal Benvenisti and George W Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’ (2009) 20 European Journal of International Law 59, 68. 14  See Mattias Kumm, ‘International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model’ (2003) 44 Virginia Journal of International Law 19 (suggesting that to situate domestic courts simply as enforcement fora for the international rule of law may be problematic, as it tends to leave the politics behind the international rule of law unchecked); Jean D’Aspremont, ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’ in O K Fauchald and A Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Oxford, Hart Publishing, 2012) 141 (noting that, while the systemic integration of international law in theory places domestic courts in a position to integrate international law, such a one-sided constitutionalist view may not be appropriate). In a similar vein, see Armin von Bogdandy and Ingo Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and

14  Machiko Kanetake this volume, analyse the critical feedback from national judicial and nonjudicial actors on international legal practices and the international rule of law, and highlight how international law and institutions pay deference to political legitimacy attached to the national rule of law. The chapter begins with an overview of the concept of the international rule of law, by classifying the relations regulated by it as well as the established elements of the international rule of law (section II below). The subject matter overlap between the national and international law concerning the regulation of the exercise of authority has invited confrontational and avoidant practices on the part of domestic courts (section III). The confrontational national reception, however, provides normative, conceptual, and political feedback on the international legal order (section IV). As several chapters in this volume further elaborate upon,15 the international rule of law has then been re-establishing its interfaces with the national rule of law by preserving national competences and, at the same time, making the elements of the international rule of law less formalistic (section V). Despite the national and international claim of hierarchy, the actual manner in which the international rule of law interacts with national law is much more nuanced and heterarchical. The heterarchical interactions have the benefit of preserving the flexibility and national diversity; at the same time, they give rise to questions about the certainty, and whether international law could provide the credible regulatory framework for the international reception of the national rule of law (conclusion).16

Its ­Democratic Justification’ (2012) 23 European Journal of International Law 7 (suggesting that domestic constitutional organs will retain a critical role in relieving the legitimacy questions levelled against international courts’ authority). 15  See, eg, chs 2 (Fikfak) and 3 (Platiše) of this volume. Fikfak suggests that domestic contestations facilitate a dialogue between domestic and international institutions and have led to incremental procedural changes within international institutions. Platiše argues that domestic contestations have incrementally contributed to the development of alternative dispute settlement mechanisms within international organisations. 16  This chapter focuses on the interactions between the national and international legal orders. These two legal orders by no means exhaust multiple normative layers in international society. The study of multiple layers of transnational norms, notably done by the NYU-based ‘global administrative law’ initiative, has the benefit of identifying normative phenomena which could not be captured by the traditional legal lens. At the same time, to capture multiple normative layers as one set of study injects the greater plurality into the concept of law, unless one uses a more loose term of ‘norms’. Kingsbury puts forward an extended positivist concept of law, which is empirically identified by social facts, and normatively screened by the publicness requirements: see Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European Journal of International Law 23. At the moment, global administrative ‘law’ is not (yet) standing on the established rule of recognition (about law), in the same way as is ‘international law’: see ibid 29–30.

A Framework Paper 15 II.  THE INTERNATIONAL RULE OF LAW

A.  Relations Regulated by the International Rule of Law As ‘a principle of governance’17 nurtured historically in the domestic legal order,18 the rule of law primarily regulates the relations between the national government and individuals under its jurisdiction. While the scope of the governmental entities and the applicability of the rule of law to private entities which exercise de facto governmental authority may still be disputed, a historically embedded general idea is that the core addressee of the rule of law is the national government. With respect to the ‘international’ rule of law, however, it is by no means clear whose relations it purports to regulate in the first place. This elementary ambiguity stems from the absence of centralised governmental authority in international society, which has traditionally made the rule of law a less pressing issue therein. This no longer holds true; the growth and reinvigoration of international organisations and international courts (‘international institutions’)19 have brought the rule of law into the familiar language at the international level.20

17  Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’ UN Doc S/2004/616 (23 Aug 2004) para 6. 18 The modern elements of the rule of law were first formulated by AV Dicey. Three meanings of the rule of law developed by Dicey are: (1) the rule by regular law, and not by arbitrary power; (2) equality before the law; and (3) the protection of individual rights by judicial decisions: Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis, Liberty Fund, 1982) 110–22. For the earlier roots of the rule of law, see Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, Cambridge University Press, 2004) 7–31 (chs 1–2) (Greek, Roman, and Medieval roots); Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331, 334–36 (referring to Sir Edward Coke, Samuel Rutherford, and Thomas Hobbes). 19  In this chapter, ‘international institutions’ include international organisations (including their political and judicial organs) and international courts established by treaties (such as the ECtHR). Apparently, there are a number of differences among these ‘international institutions’. (1) eg, international organisations possess international personality, while international courts generally do not. (2) Also, there are political institutions (political organs of international organisations, such as the UN Security Council), and judicial institutions (judicial organs of international organisations, such as the ICJ, and other international courts). While these differences must be taken into account for the analysis of the interfaces, the focus of this chapter is to provide the framework, o