Matthew Saul

Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges

In this article I address the justifications and methods adopted by scholars and international judges for the identification of jus cogens norms. More specifically, I examine how the approaches taken by these two subsidiary sources of international law relate. In so doing, I seek to highlight and develop a clearer understanding of why, in spite of considerable scholarly and judicial attention, more progress on the doctrine of jus cogens identification has not been made. The analysis covers assessment of the practice of interaction, but also its underpinnings, which include the implications of jus cogens identification for the legitimacy of international courts. I argue that scholars have focused on justificatory theory at the expense of methodological considerations and that this has limited the scope for the development of a useful discourse with international judicial bodies on matters of jus cogens identification.

From Haiti to Somalia: The Assistance Model and the Paradox of State Reconstruction in International Law

This article is an attempt to draw attention to the nature of the assistance model of state reconstruction and its significance for the UN system. Traditional international legal doctrine identifies valid state consent with an effective domestic government. Moreover, effective control remains the means for applying the legal right of self-determination for the population of a state as a whole. Nonetheless, a frequently adopted paradigm for large-scale international involvement in the reconstruction of an ineffective state operates through the consent of an ineffective government. The assistance model is found in the recent past of Haiti (1994-1997; 2004-), Sierra Leone (1998-2005), Liberia (2003-), Afghanistan (2001-), in Iraq following the formal end of the belligerent occupation (2004-), and there are signs that it could soon be pursued in Somalia. To reveal how the assistance model of state reconstruction in fact relates to the political independence of the target state and its people, the key features of the assistance model and related legal issues are addressed. The main argument is that while the assistance model appears unremarkable, in fact it offers little protection for political independence and as a consequence puts at risk the core values of the UN system of self-determination of peoples and international peace.

Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights

The quality of parliamentary process has been a relevant factor for the European Court of Human Rights in a number of recent judgments. This article asks: to what extent could the technical purpose for assessing parliamentary process – margin of appreciation and/or proportionality analysis – structure the assessment? The analysis combines study of the court’s practice with theory on the margin of appreciation and the proportionality test. Four cases are selected to represent different ways in which parliamentary process has been dealt with by the court: Animal Defenders International v. UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; and Parrillo v. Italy. The main argument is that the court has been hazy about the technical purpose that reference to parliamentary process is serving in its reasoning. This has affected the coherence of reasoning within cases and the development of a general doctrine on the assessment of parliamentary process. Judges interested in the legitimacy of the court and in favour of placing value in parliamentary process should work towards clearer explanation of the technical purpose it serves within the court’s reasoning.

Local Ownership of the International Criminal Tribunal for Rwanda: Restorative and Retributive Effects

This article identifies and explores the approach taken by the UN Security Council to local ownership of the establishment of the International Criminal Tribunal for Rwanda (ICTR). In so doing, the article seeks to contribute toward a comprehensive understanding of the role of the ICTR in transitional Rwanda, as well as to identify lessons for the initiation of ad hoc international criminal tribunals in the future. The perspective that is adopted is centered on considerations of restoration, but attention is also given to the impact of the approach taken to the establishment of the ICTR on the delivery of retribution. A central argument is that the possibility of including a broad range of local input during the establishment of an international criminal tribunal should be taken seriously, as this represents a useful opportunity to enhance the legitimacy of a tribunal and its outcomes. However, it is also contended that any attempt at fostering a sense of local ownership during the establishment of an international criminal tribunal should be tailored to suit the context, in order to reduce the scope for it to have a negative impact on the overall effectiveness of a tribunal.

Accountability in Internationally Administered Territories and the Impact of a (Post) - Conflict Context on Interdisciplinary Legal Research

Armed conflict and its aftermath raise issues that can be answered through traditional doctrinal legal research. For instance, the scope and content of the legal obligations that apply to an individual member of a United Nations peacekeeping mission are determined by a straight analysis of the law. But conflict also creates many research problems that operate at the intersection between law and other disciplines, such as the issue of how to ensure accountability in a war-torn territory that is subject to international administration. This helps to explain why law is consistently included in calls for interdisciplinary research on issues stemming from (post)-conflict situations. Through analysis of a research paper by Professor Richard Caplan on accountability of internationally administered territories, this paper considers the possibility that a (post)-conflict context could add an extra layer to the complexity of interdisciplinary legal research. More specifically, the paper identifies and explores possible complications that might arise if one were to try and fully combine a policy perspective with an international legal perspective in the analysis of the accountability of international administration of war-torn territories. A central point is that there are good reasons to expect that a (post)-conflict context will complicate the design and implementation of interdisciplinary legal research.