1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

1. Intersections between trade and non-communicable disease 2. Normative integration: using health instruments in interpretation of the WTO covered agreements 3. Freedom to use taxes, subsidies and restrictions on marketing 4. Necessity and regulatory autonomy under the GATT 5. Product regulation and labeling measures under the SPS and TBT agreements 6. Reallocating authority at the international level: delegation, legalisation and harmonisation 7. Conclusion.

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Trade and Public Health: The WTO, Tobacco, Alcohol, and Diet

The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of " International Law in a Heterogeneous World " . The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains - and further develops - its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ' universality ' of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the dif- ferent notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to univer- sality: the so-called ' fragmentation ' of international law; in close connection with this fi rst buzzword the challenges posed by what is called the ' proliferation ' of international courts and tribunals; and, fi nally, certain recent problems faced by individuals who fi nd themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coher- ent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ' proliferation ' of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent con- struction of international law. They have managed to develop a set of tools for coping with the * Judge at the International Court of Justice. This article was originally presented as the Keynote Speech at

Universality of International Law from the Perspective of a Practitioner

Partant de l’intuition que la notion d’Etat en droit international et en droit europeen fait apparaitre des elements tellement epars et desordonnes, on a pu demontrer que cette intuition de depart se reflete tres bien dans la realite. En effet, d’une branche a l’autre, on se rend compte que les ordres juridiques etudies offrent une vision polymorphe de la notion d’Etat, sous la forme d’« une figure a geometrie variable ». En explorant les regles d’imputation, les regles de rattachement et les regles d’expression de la volonte de l’Etat, force est de constater que la notion d’Etat peut etre apprehendee du point de vue organique, du point de vue materiel et du point de vue factuel. Au-dela de cette variabilite, il convient de rechercher l’unite fonctionnelle de la notion d’Etat. On en vient, des lors, a la conclusion selon laquelle : la fonction singuliere de la notion d’Etat est sa propension a etre un outil au service des necessites systemiques de l’ordre juridique international et europeen. La notion d’Etat est en effet mobilisee pour servir un objectif particulier, ce qui rend concevable sa geometrie variable. Ainsi, notre these s’evertue a faire ressortir l’unite dans la variabilite. Elle comporte toutefois en filigrane une proposition theorique, celle de « l’Etat fonctionnel ». Par « Etat fonctionnel », nous entendons toute entite qui n’est pas statutairement un Etat, mais qui neanmoins exerce pleinement et entierement des fonctions de nature etatique, et ceci de facon autonome. On vise par-la certaines entites federees (comme celles de la Belgique et le Quebec) et certaines entites secessionnistes ((comme la RTCN) ou des groupes terroriste (comme l’Etat islamique). La theorie de « l’Etat fonctionnel » ne va pas jusqu’a postuler la reconnaissance de la qualite d’Etat a ces entites, mais seulement de les considerer comme tel, de facon ponctuelle, afin de permettre une application effective et efficace de la norme internationale et/ou europeenne.

https://corpus.ulaval.ca/jspui/bitstream/20.500.11794/28108/1/33726.pdf

Notion d'Etat en droit international et en droit européen : de l'impossible approche conceptuelle à la nécessaire approche fonctionnelle

The comment focuses on the construction of time in the normative regime of occupation Beginning (in section 2) with a critique of the ICJ's reading of Article 6 of the Fourth Geneva Convention concerning the scope of applicability ratione temporis of the Convention in cases where the duration of an occupation lasts longer than one year, the comment proceeds (in section 3) to argue (a) that the gap between the working assumption informing Article 6 (of relatively short-term occupations) and reality (of prolonged occupations) defines a problem which the Court erroneously construed as a solution; (b) that the problem of prolonged occupation has allowed for the substitution of an indefinite for a temporary duration of an occupation a move which defies the basic tenets of the normative regime of occupation; and (c) that a proper solution involves the construction of the notion of "reasonable time" into the Fourth Geneva Convention The comment includes (in section 4) a proposal designed to minimize the temporary/indefinite blurring of boundaries in situations where an occupation has not ended within one year

'A la Recherche Du Temps Perdu': Rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion

This article has two main purposes. The first is to provide an introduction to Santi Romano's seminal work L'ordinamento giuridico, first published in 1917, in which the author develops the main tenets of his thought, namely institutionalism and pluralism. The first part of this essay accordingly provides an outline of Romano's theories; this account is intended to be sufficiently robust to benefit an English-speaking readership for which there is still no translated version of L'ordinamento giuridico available. Embedded within the overview of Romano's theories is a discussion of the criticism they have attracted and the influence they had on Romano's contemporaries, and to that extent this first part constitutes a contribution to the history of ideas. The second purpose is to assess the relevance of Romano's theories for the current study of international, transnational and global law. It is argued that Romano's particular conception of law as an institution can be helpful in the current debate o...

Santi Romano and L'ordinamento giuridico: The Relevance of a Forgotten Masterpiece for Contemporary International, Transnational and Global Legal Relations

In late Feb 2013, the ECJ handed down the Akerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake - cumulating administrative and criminal penalties for tax evaders - 'implemented' EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally. Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation. [PUBLICATION ABSTRACT]

Hic Sunt Nationes: the Elusive Limits of the EU Charter and the German Constitutional Watchdog

In a recent cartoon from the New Yorker, a lawyer is seen standing before a judge, his arms stretched, making him a passionate request: “Can we, just for a moment, Your Honor, ignore the facts?”1 This cartoon brilliantly encapsulates the centrifugal force of legal argumentation, which at times causes otherwise consummate professionals to lose touch with the facts in which disputes should be firmly rooted. Admittedly, this article attempts a similar exercise, but deliberately. Its purpose is to analyse the technicalities of an objection raised in a recent proceeding before the International Court of Justice (ICJ), as if the facts

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The Invocation of the Exception of Non-Performance: A Case-Study on the Role and Application of General Principles of International Law of Contractual Origin

The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the “implementation of EU law,” has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2548086_code648877.pdf?abstractid=2548086&mirid=1&type=2

The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights

This article challenges the rhetoric of hardening, according to which international standards become binding through WTO endorsement. The analysis of the system of presumptions set up in the Technical Barriers to Trade Agreement and Sanitary and Phyto-Sanitary Agreement reveals that international standards are actually used as a ‘ceiling’ rather than a ‘floor’ benchmark of protection, contrary to their original spirit. They represent a codified and agreed yardstick for least trade-restrictive measures, a minimum compromise between the regulatory regime and the trade litigation machinery. It follows that their nature—at least within the WTO system—is irreversibly distorted; they are treated as facts rather than as safety or quality devices.

Filippo Fontanelli

Papers

Santi Romano and L'ordinamento giuridico: The Relevance of a Forgotten Masterpiece for Contemporary International, Transnational and Global Legal Relations

Hic Sunt Nationes: the Elusive Limits of the EU Charter and the German Constitutional Watchdog

The Invocation of the Exception of Non-Performance: A Case-Study on the Role and Application of General Principles of International Law of Contractual Origin

The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights

ISO and Codex Standards and International Trade Law: What Gets Said is Not What's Heard