Ingo Venzke

How interpretation makes international law : on semantic change and normative twists

1. In the Beginning was the Deed 2. The Practice of Interpretation: Theoretical Perspectives 3. UNHCR and the Making of Refugee Law 4. Adjudication in the GATT/WTO: Making General Exceptions 5. Lawmaking in the Practice of Interpretation: Normative Twists 6. Epilogue: In the End there is Eternity

In whose name? A public law theory of international adjudication

Roughly 90% of all international judicial decisions have been issued after 1990. The increasing activity of international courts over the past two decades is one of the most significant developments within the international legal order. It has repercussions on all levels of governance and unsettles received understandings of the nature and legitimacy of international courts. An important and once even dominant understanding used to hold that international courts are but instruments of dispute settlement whose activities are justified by the consent of the states that created them and in whose name they decide. This understanding eclipses other important judicial functions, underrates problems of legitimacy, and stands in the way of a full assessment of international adjudication. It is modelled around the eminent International Court of Justice and is out of step with recent developments. But what should be put in the place of this received understanding? The book proposes a public law theory of international adjudication, which sees international courts as multifunctional actors who exercise public authority and need democratic legitimacy. The book’s theory’s three main building blocks are: multifunctionality, international public authority, and democracy. The book thus wish to cut to the core of debates about the legitimacy of international adjudication with the driving question: In whose name do international courts decide?

Beyond Dispute: International Judicial Institutions as Lawmakers

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes.

International Law and its Methodology: introducing a new Leiden Journal of International Law series

Questions about methodology are questions of disciplinary identity. It is thus not surprising that they provoke such heated debates. The state of methodological debates is indicative of the condition of a discipline. If those debates advance to the centre of attention within any specific field of scholarly practice, it typically indicates a moment of crisis or - less dramatically - a push for change. In other times of relative stability, questions of methodology tend to stay on the margins of the field. Scholarly practice goes about its routine business along well-established lines. It uses the tools of a discipline without further ado.

International judicial lawmaking : on public authority and democratic legitimation in global governance

From the contents: Framing the Issue.- Judicial Lawmaking for Economic Governance: The ICSID and the WTO.- Judicial Lawmaking to Protect the Individual: The IACtHR, the ECtHR, and the ICTY.- Further Fields of Judicial Lawmaking: The ICJ and the CAS.- Strategies in Response: Concluding Considerations and Outlook.

International Bureaucracies from a Political Science Perspective - Agency, Authority and International Institutional Law

International bureaucracies are autonomous actors in a broader process of global governance. Their actions are oftentimes removed from the intentions and control of their creators; they affect other actors and engage in subject matters not formerly within their reach. Their factual impact remains underestimated. Little consolation can be found in the contention that international bureaucracies merely seek the effective implementation of global goals. A yawning gap unfolds between the mechanisms of control, means and ways for contesting the actions of bureaucracies and their actual exercise of public authority. These are the primary contentions motivating research on the development and conceptualization of international institutional law. This contribution sets out to corroborate these underlying contentions from a political science perspective. It subscribes to the approach that the exercise of public authority be framed in a rule-of-law context and highlights the implications of such an approach. It discards an exclusively instrumental view of international institutions that portrays them as tools in the hands of their creators or as mere instruments in pursuit of global goals. In conclusion, it emphasizes law’s constitutive role in providing a space for legal and political contestation as an indispensable prerequisite for the normative desirability of autonomous international bureaucracies. International Relations (IR) scholarship had for some time only provided a rather nebulous view of the performance of international organizations (IOs) and less formal institutions because its focus had rested on the question why IOs exist and persist. The question what IOs actually do, a conception of IOs as actors as well as an understanding and explanation of their actions, had long been largely overshadowed by the more fundamental theoretical entanglement of whether they matter at all. IR scholarship had been, so to speak, driving with a rearview mirror directed at those primary questions at the beginning of the road. This has certainly benefited our understanding of the importance of IOs but has also come at a regrettable loss. Most importantly, this focus has left IOs as actors in a dead angle from which they have only slowly emerged to attract some attention. This contribution conceptualizes parts of IOs and less formal institutions, in particular administrative or executive organs, as bureaucracies. It thereby elucidates their sources of autonomy and authority and highlights common mechanisms to which international bureaucracies resort in the exercise of public authority. In order to grasp their autonomous actions it appears necessary to divert more attention away from the rearview mirror directed at IOs’ embryonic stages under the tutelage of (dominant) constituent members. IOs have grown up. Attention should be given to the perimeters of their action, the sources of their autonomy and to how they act. In short, even if it were still doubtful that IOs do matter, it is not a bad idea to at least leer at IOs as actors. Otherwise they might emerge from the dead angle of research agendas to suddenly claim obedience. Jan Klabbers evocatively opens his Introduction to International Institutional Law with a quote from Mary Shelly’s Frankenstein: “You are my creator, but I am your master; obey!”

On the democratic legitimation of international judicial lawmaking

While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction.

Investor-State Dispute Settlement in TTIP from the Perspective of a Public Law Theory of International Adjudication

The article provides an assessment of the European Commission’s recent proposal for reform in investor-state dispute settlement (ISDS) under the Trans-Atlantic Trade and Investment Partnership (TTIP). It does so on the basis of a public law theory of international adjudication that presents international courts and tribunals as multifunctional actors who exercise public authority and therefore require democratic legitimacy. The article introduces this understanding against the background of other, traditional basic conceptions of international courts and tribunals. It then focuses on the prospects of appellate review and politico-legislative input under the European Commission’s proposal for TTIP, as well as on the provisions pertaining to the arbitrators, the judicial process, and the judicial decisions. While the net merits of ISDS in the Trans-Atlantic context are uncertain, the article submits that the European Commission’s proposal provides, in principle, a welcome response to some of the more egregious shortcomings of investor-state arbitration.

What makes for a valid legal argument

Three intertwined threads run through many recent editorials of the Leiden Journal of International Law (LJIL). They tie together many debates within and beyond the board of editors. The threads are those of the Journals plural identity, the conversation about methods, and the spicy theme of interdisciplinarity. They are related for obvious reasons. Methodology forms one - not the only and perhaps not the foremost - factor in assessing submissions. We need to have an idea of good methodology for such an assessment to be possible. At the same time such an idea must not go against the plurality of perspectives or the Journals aspiration to provide a forum to new and possibly unsettling voices. Research that cuts across disciplines seems especially valuable in this regard. But it comes with its own methodological challenges and tests the Journals identity which is - albeit plural- that of a Journal of international law. It is against the background of these intertwined threads that I wish to offer a discussion of a central question that mirrors these recent debates: What makes for a valid legal argument?

Making general exceptions: the spell of precedents in developing article XX GATT into standards for domestic regulatory policy

Judicial lawmaking in the GATT/WTO context has for some time drawn considerable attention. Some are inclined to show a sense of existentialist anxiety in view of the fact that legal practice does not neatly live up to the orthodox doctrinal order of things. Others see judicial lawmaking as (theoretically or practically) inevitable and tend to readily embrace it as a way of overcoming defunct political processes.