Multi-Sourced Equivalent Norms in International Law

Tomer Broude, Yuval Shany, Tomer Broude, Yuval Shany

• Publisher: Hart Publishing
• Year: 2011
• Print ISBN: 9781849461450
• eBook ISBN: 9781847317827
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

Recent decades have witnessed an impressive process of normative development in international law. Numerous new treaties have been concluded, at global and regional levels, establishing far-reaching international legal and regulatory regimes in important areas such as human rights, international trade, environmental protection, criminal law, intellectual property, and more. New political and judicial institutions have been established to develop, apply and adjudicate these rules. This trend has been accompanied by the growing consolidation of treaty norms into international custom, and increased references to international law in domestic settings. As a result of these developments, international relations have now reached an unprecedented level of normative density and intensity, but they have also given rise to the phenomenon of 'fragmentation'. The debate over the fragmentation of international law has largely focused on conflicts: conflicts of norms and conflicts of authority. However, the same developments that have given rise to greater conflict and contradiction in international law, have also produced a growing amount of normative equivalence between rules in different fields of international law. New treaty rules often echo existing international customary norms. Regional arrangements reinforce undertakings that already exist at the global level; and common concerns and solutions appear in many international legal fields. This book focuses on such instances of normative parallelism, developing the concept of 'multisourced equivalent norms' in international law, with contributions by leading international law experts exploring the legal and political implications of the concept in a variety of contexts that span the full spectrum of international legal norms and institutions. By concentrating on situations governed by a multitude of similar norms, the book emphasizes the importance of legal contexts and institutional settings to international law-interpretation and application.

1

The International Law and Policy of Multi-Sourced Equivalent Norms

Tomer Broude and Yuval Shany

But let judgment run down as waters, and righteousness as a mighty stream.

Amos 5:24¹

I THE PUZZLE OF NORMATIVE PARALLELISM IN INTERNATIONAL LAW

THE EPIGRAPH, A passage now almost three millennia old, is a plea for social justice and the rule of law that reverberates with equal force in our day and age. However, we cite it here not only for its substance, but mainly for its rhetorical structure. The phrase reflects the puzzle of parallelism that is analogous to the set of legal problems that this book is devoted to. The verse is a simple couplet, and its two constituent phrases obviously echo each other. But what is the true logical relation between them? Repetition? Augmentation? Differentiation? Contradi(stin)ction? Some combination of all the above? Surely the two parts of the verse are equivalent, but they are neither identical, nor fully equal. The prophet’s intentions are effectively and independently captured in each part of the verse, yet there is a supplementary effect in their separate existence, as the two parts appear to reflect upon each other somehow.

Such parallelism has long been the object of study among scholars of the Bible, who not only identify several distinct types and dynamics of parallel relationships between verses, but use this ‘parallelism of members’ – parallelismus membrorum² – as an aid in interpreting one part of a verse in the light of the other.³ Moreover, these verses are not only part of ancient Hebrew poetry; they often contain a strong normative element. If viewed as legal imperatives or prescriptive rules, do the two branches of the sentence copied above – deceptive in their likeness – simply repeat the same rule, or do they provide subtly different commands, whose divergence might become decisive in particular circumstances? What is the legal significance of this parallelism and how does one rule reflect on its erstwhile equivalent? What, indeed, is the relationship between two norms that are so similar to each other, yet different? Do they create normative inconsistency, and if so, what is the consequent effect on legal certainty and the political legitimacy of law?

This book is about normative parallelism and equivalence, as it exists – and this is increasingly the case – in contemporary international law, bringing with it a slew of legal questions regarding the relationship between equivalent norms. We have opted to label the situations in which equivalent rules co-exist in the international legal sphere as ‘Multi-Sourced Equivalent Norms’ or MSENs for short. They are ‘equivalent’ because like the parallel parts of a biblical couplet, they are not always identical, and an understanding of their interrelationship requires deeper study. They are ‘multi-sourced’ because unlike the biblical ‘parallelism of members’, equivalent international norms are rarely conjoined like the analogous parts of a verse. Rather, equivalence is found between distant sources of international law, and across fields of international law that otherwise might have little in common with each other.⁴ Furthermore, normative parallelism often exists unnoticed and unacknowledged, although pregnant with problems of law and policy, that lie dormant until unexpected contexts and unintended developments bring them to the fore.⁵ In this chapter we will define and discuss MSENs as a conceptual introduction to the particular studies that follow.

II THE RISE OF MSENS IN FRAGMENTED INTERNATIONAL LAW

Normative parallelism is not unique to international law and exists in a variety of domestic legal settings. The same behaviour – assault or wilful killing – is often prohibited under criminal statutes and at the same time gives rise to liability under tort law.⁶ An administrative agency may regulate the conduct of private actors through regulations, licences and contracts, as different sources whose normative content may be similar or identical.⁷ A national legal system may refer to religious law to determine whether a marriage has been consummated, establishing a parallelism between religious and civic personal law.⁸ The ‘kitchen sink’ strategy of private litigation leads to lawsuits in which the same act is allegedly in violation of rules and obligations from a broad range of legal sources. These equivalences are commonplace and are rarely considered problematic and can be attributed to the normative unity and institutional integrativity of domestic legal systems. After all, parallel domestic norms are typically promulgated by the same legislative system and/or adjudicated by the same courts. MSENs may, however, have a very different effect in the ‘anarchical’ international legal system,⁹ which is characterized by a lack of institutional integration.

The lack of integration at the international level and the growth in law-making underlies the problem of normative fragmentation. Indeed, recent decades have witnessed an impressive process of normative development in international law: Numerous new treaties have been concluded, both on the global and regional levels, establishing far-reaching international legal and regulatory regimes in important issue areas such as human rights, international trade, environmental protection, criminal law, environmental protection, intellectual property and more. This trend has been accompanied by the growing consolidation of treaty norms into international custom. As a result of these developments, international relations have now reached an unprecedented level of normative density and intensity. While these developments are clearly a response to an increased demand for international law and institutions, and have many positive implications – such as the promotion of the international rule of law, the advancement of important values and the facilitation of interstate cooperation – they also present several theoretical and practical challenges in law and legal policy that are worthy of further investigation.

One such major challenge specifically identified by the International Law Commission (ILC) is the fragmentation of international law. According to the 2006 ILC report on the subject, in the absence of a central authority in international relations, the rapid normative development by different and uncoordinated legal regimes might lead to ‘conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law’.¹⁰ The report then goes on to discuss a variety of phenomena, which contribute to normative fragmentation (for example, self-contained regimes and regionalism) and considers different legal principles that may improve upon existing levels of coordination between different international norms (lex specialis, lex posterior, jus cogens, systemic integration through harmonizing interpretation).¹¹

The debate over the fragmentation of international law, epitomized by the work of the ILC, has largely focused on conflicts: conflicts of norms¹² and conflicts of authority.¹³ However, the same developments that have given rise to greater conflict and contradiction in international law have also produced a growing amount of normative equivalence between rules in different fields of international law. New treaty rules often echo existing international customary norms; regional arrangements reinforce undertakings that already exist at the global level; and common concerns and solutions appear in many international legal fields. In its report, the ILC took brief note of this phenomenon that we refer to here as parallelism or equivalence, in its mention of fragmented international rules that nonetheless ‘point in the same direction’.¹⁴ These rules are MSENs, and it is on the difficulties associated with their legal effects that the contributions in this book have focused.

III DEFINING AND CHARACTERIZING EQUIVALENCE

To better understand the problems raised by MSENs, the International Law Forum of the Hebrew University of Jerusalem, with the financial support of the Davis Institute for International Relations, established in 2008 an international academic study group on MSENs, involving a group of international law experts from a variety of backgrounds and perspectives. The group met several times – at Cambridge, in Amsterdam, Geneva and finally on Mount Scopus in Jerusalem – for a series of working sessions in which the study group’s participants presented their works in progress on the law and policy of MSENs in international law. The mandate of the study group was deliberately quite broad: to examine the issues and problems that arise from the existence of MSENs in a fragmented international legal order, and to consider methodologies for their resolution.

For the purposes of the study group’s work, MSENs were understood as situations where distinct international legal rules direct similar or identical behaviour; more specifically, MSENs were defined as

two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content; and (3) have been established through different international instruments or ‘legislative’ procedures or are applicable in different substantive areas of the law.¹⁵

Despite its limitations, this definition allowed for a very wide range of cases to be examined; viewed through the MSEN lens, international law appeared refreshingly harmonious, rather than conflictual. A few examples will suffice. Consider the obligation to prevent transboundary pollution, which may be considered by many European states as a MSEN, since it is firmly grounded in international custom,¹⁶ a number of global and regional environmental treaties,¹⁷ European Union (EU) law¹⁸ and human rights law.¹⁹ The obligation not to pollute might even be viewed as a general principle of international law.²⁰ Other examples include the legal defence of necessity, which may in many cases, such as those involving non-international armed conflicts under human rights law, co-exist in international humanitarian law and the general laws of state responsibility;²¹ the prohibition of the use of force (and the self-defence exception thereto) that exists under both international customary law and the UN Charter, as well as under regional instruments and some bilateral agreements;²² the concurrent national treatment obligations in regional trade agreements and under the World Trade Organization (WTO), which may overlap with non-discrimination norms applicable to foreign labourers under human rights law and certain provisions of international investment law;²³ and the prohibition of torture that exists under a number of human rights treaties and in international humanitarian law; substantive EU norms that overlap with norms existing under WTO law, the laws of the European Economic Area (EEA) and the European Convention on Human Rights.²⁴ In short, international law, in spite of (and indeed because of) its fragmentation, is characterized by equivalence as much as it is by conflict.

The study group attempted to look at the theoretical and practical dimensions of MSENs. It aimed to explore how MSENs have been treated by law-applying agencies, such as international tribunals and domestic courts applying international law,²⁵ and to consider the relative degrees of success offered by different courses of action. Its work also tried to assess the criteria for identifying points of similarity and difference among MSENs and the tendency to attribute to them either independent or mutually-subsumed existence. From the outset, it was clear to the study group that MSENs are not monolithic. They differ with respect to the types of legal sources that gave rise to normative parallelism (for example, overlapping treaty-regimes; different sources of international law, such as custom or treaty law; different substantive branches of international law). In addition, different MSENs will often have different ‘background’ principles and rules (dispute settlement provisions, reservations, applicability prerequisites and principles of interpretation) and different institutional framework for application. The way MSENs are treated may also differ between specific normative regimes.

While addressing these MSEN-related issues, a central question that emerged was whether there exist unifying characteristics that cut across the various categories and expressions of multi-sourced obligations. There is no ‘neat’ answer to this question, but the following three features could be discerned in most, if not all, of the study group’s discussions (and are further expressed in the specific studies included in this book).

First, MSENs are never fully equal, and it is the differences among them that are particularly interesting. Different political, institutional and legal contexts – the background on which MSENs are created and upon which they operate – are often determinative of the ways in which they act and relate to each other. While the nucleus of all MSENs is their equivalence, the accompanying contexts accentuate the differences between them.

Secondly, the contextual and other differences between otherwise equivalent MSENs present international legal actors (including judicial decision-makers) with choices to be made regarding the relative emphasis placed on each relevant MSEN in analysis, interpretation, application, argumentation and adjudication. These choices provide actors with flexibility, allowing them to pursue their goals by shifting between regimes relatively easily.²⁶ However, this can cause the legal framework of some MSENs to be weakened or neglected, or create conflict when different actors disagree about the relationship between applicable MSENs. In many MSENs, the line between smoothly-running normative equivalence on one hand, and conflictuality between norms or institutions, that stems from the contextual differences embedded in equivalence on the other, can be very thin indeed.

Thirdly, with all the eclectic diversity of MSENs, the analytical menu of methods through which international law can treat normative equivalence and resolve the operative difficulties that it raises appears to be restricted to a number of discrete strategies, that should be carefully studied in each case.

Let us now elaborate on these features.

IV SAME, SAME, BUT DIFFERENT? CONTEXT AND THE DIFFERENCES EMBEDDED IN MSENS

One cross-cutting theme examined by the study group is that MSENs are in fact never fully equal, and that it is the differences between them, such as in their contexts that create their complexity. Similar MSENs may differ in their precise formulation, but even identically phrased norms entail different normative consequences resulting from the distinct political, normative and institutional environments in which they function.²⁷ On the normative plane, MSENs are influenced by different background principles and rules such as reservations, dispute settlement provisions, exemptions from liabil...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Acknowledgements
• Contents
• List of Contributors
• 1 The International Law and Policy of Multi-Sourced Equivalent Norms
• Part I MSENs and the Fragmentation of International Law
• Part II MSENs in Judicial Practice
• Part III MSENs in Specific Normative and Institutional Contexts
• Index