This panel was convened at 10:45 a.m., Friday, March 27, by its moderator, Anthea Roberts of the London School of Economics, who introduced the panelists: Karen Knop of the University of Toronto, Ralf Michaels of Duke University School of Law, Gabriella Blum of Harvard Law School, and Katerina Linos of the Harvard Society of Fellows.
The Cutting Edge panel was an idea developed by the 2009 ASIL Program Committee and, in particular, Oona Hathaway, who proposed and took the leading role in organizing this panel. Many programs at conferences draw on previously published work and thus lag one or two years behind some of the most innovative contemporary research in the field. As a step towards identifying and giving exposure to exciting current projects, we made a general call for proposals based on unpublished works-in-progress.
The response to this call was extremely positive. We received more than sixty submissions for just three spots on the Cutting Edge Panel. The following proposals were selected because they represent interesting and original work across a variety of fields and evidence a range of theoretical approaches. The first uses a conflicts-of-law approach to analyze clashes between international and domestic law; the second questions a basic assumption in the laws of war before proposing a significant reform; while the final one draws on empirical work to test claims about norm diffusion.
I hope that you enjoy these presentations. Given the competitive selection process, and the resulting quality of the contributions chosen, I am sure that it will not be long until full versions of all three papers are published elsewhere.
By Anthea Roberts, Law Department, London School of Economics.
INTERNATIONAL LAW IN DOMESTIC COURTS: A CONFLICT OF LAWS APPROACH
In international law textbooks, the question "is international law law?" is presented at the beginning as a matter of jurisprudence--Austin's command theory of law and Hart's discussion of why international law differs from morality. But it is neither in the preliminary nor in the abstract sense that the question now arises most acutely. It is in the treatment of international law by domestic courts--a concrete practical setting--and the question is contextual in form: is a particular type of international law law for a particular purpose in a particular domestic legal system? Accounts of how domestic courts do, or should, treat international law are not presented as answers to this question, but of course they are propositions about whether it counts as law and, if not, then what its nature is exactly.
In a recent article, Neil Walker draws up a list of very general and disparate concepts to describe the relationship between international and domestic law: institutional incorporation, system recognition, normative coordination, environmental overlap, and sympathetic consideration. (1) Strangely absent from his list of concepts--and from the debate more generally--is the discipline for which the nature of other legal systems and the nature of their jurisdiction, laws, and judgments vis-a-vis the domestic legal system, are precisely the bread-and-butter issues. This discipline is conflict of laws, or private international law as it is more often known outside the United States. Although scholars of international law in domestic courts occasionally borrow one or another idea from conflict of laws, (2) the parallel between the two has not been systematically explored.
Why the neglect of an obvious parallel? One reason may lie with the traditional scope of conflict of laws. Conflicts is often narrowly understood as a discipline with a certain method (in the United States, this is usually either interest analysis or the most significant relationship test) and a certain policy objective (comity). In our view, conflicts should be seen more broadly as the discipline developed to deal with conflicts between laws, without necessarily being committed to any particular method or any particular policy. In this light, its relevance for conflicts between international law and domestic law, and their interrelationship more generally, becomes apparent.
Other likely reasons why conflict of laws is overlooked concern the state of the field; for one, its high degree of technicality. Brainerd Currie spoke disparagingly of a "conflict-of-laws machine": a court simply presses what it thinks are the proper levers and then sits back complacently while the machine grinds out the result. (3) Another reason relates to the field's abundance of successive theories, critiques, and revisions, which continue to coexist in the courts and the literature: vested fights theory, local law theory, governmental interest analysis, the theory of the better law, and so on. Prosser notoriously described conflict of laws as a "dismal swamp ... inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon." (4) In contrast, we will suggest why both the machine-like quality of conflicts and the multitude of theories which Prosser deemed a swamp actually figure among the advantages of a conflict-of-laws approach to international law in domestic courts.
The promise of a conflicts perspective is threefold. First, it offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. Intriguingly, Joseph Weiler's editorial on the Kadi decision all but makes this case for the parallel with conflicts. (5) In Kadi, the European Court of Justice partly annulled the European Community's (EC) implementation of UN Security Council anti-terrorism resolutions requiring states to freeze the financial assets of individuals and entities associated with Osama bin Laden, the Al-Qaeda network, and the Taliban, as designated by the Sanctions Committee of the Security Council. It held that the implementing measures violated fundamental human fights protected by the EC legal order. Weiler criticizes the Court for its "bold and unsophisticated assertion" that the EC measures would in reality not be treated any differently than had they been autonomous measures adopted by the EC Council of Ministers rather than measures originating from the Security Council. Although Weiler does not propose a better approach, he specifies that such an approach would require a hermeneutic that recognizes what he calls the "double jurisdiction situation." Our point is that conflict of laws provides such a hermeneutic. In other words, conflicts is not simply one more solution to a well-known problem--yet another concept to be added to Walker's list. Rather, conflict of laws is a better formulation of the problem.
Seeing the parallel with conflict of laws brings a second advantage to the international law in domestic courts debate: namely, a wealth of experience that can enrich and refine the debate. The "dismal swamp" proves to be a productive biosphere. Indeed, the theories, critiques, and revisions that mark the field of conflicts have already played out much of the debate that is now occurring in the context of international law in domestic courts, giving it an altogether familiar ring.
Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism--which, we argue, conflict of laws is uniquely positioned to address. Here, the technicality of conflict of laws is not a shortcoming but a strength. The "conflict-of-laws machine," we argue, is a way to reach a result without yielding to arbitrariness in the face of otherwise insurmountable complexity. Accordingly, we describe our larger project (6) as "theory through technique." This project will use private international law as a way of thinking through problems of legal, political, and cultural relativism, (7) including multiculturalism and transitional justice, as well as international law in domestic courts.
What exactly does it mean to say that there is a parallel between conflict of laws and international law in domestic courts? Like conflicts, international law in domestic courts concerns relations between laws. Moreover, although not ordinarily described in this way, international law and national law each have what we might call their own conflicts rules: rules that determine whether a case with links to more than one jurisdiction is governed by the law of the forum or the law of one of those other jurisdictions. Thus, international law has rules that determine when it will take account of domestic law. For example, Article 27 of the Vienna Convention on the Law of Treaties, which says that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty," is recognizable as a negative conflicts rule determining non-applicability of domestic law. And Article 46, which makes an exception to Article 27 when a state's consent to be bound amounts to a manifest violation of a rule of its internal law of fundamental importance, is identifiable as a conflicts rule triggered by the state's manifestly greater interest. States, by contrast, have their own constitutional, statutory, and judge-made rules that determine the effect given to international law. The Supremacy Clause in Article VI, paragraph 2, of the U.S. Constitution, for instance...