Fora

International Law and National Law

Forum 1: International Law and Domestic Courts

The role of national courts as interpreters and enforcers of international law has been debated for ages. If they are permitted to apply international law as a matter of domestic (constitutional) law, the question arises whether they are sufficiently equipped to apply and develop it adequately. What are the criteria for such adequacy? Who decides whether they get it right? This forum is meant to address general conceptual issues concerning the role of domestic courts as ‘agents’ of international law creation, application and modification.

Forum 2: Judicial Dialogue 

International law is applied both by international and national courts. Questions of international criminal law, diplomatic immunity, human rights, use of force or state succession may be raised and decided by courts at the international or national level. In order to secure the coherence of international law, a minimum of judicial dialogue is often regarded necessary. But do courts actually engage in such vertical or horizontal judicial dialogue? While there are acclaimed examples of vertical judicial dialogue (for instance the Solange jurisprudence of the German Constitutional Court and the ECJ’s development of fundamental rights protection) it may be questionable to what extent this also permeates other fields. Do national courts seriously engage in scrutinizing the decisions of courts of other states? If so, do they have an agenda by doing so? And how should the (limited) practice be assessed in terms of the claimed ability of judicial dialogues to increase coherence of international law?

International Law and Private International Law

Forum 3: International Law, Cultural Heritage and the Arts

The topic of international law, cultural heritage and the arts has typically been concerned with artistic objects and cultural property. Yet, in a broader sense, the law of cultural heritage may also be conceived of as a public good and in the sense of natural heritage and cultural landscape. Equally, the term may be applied to all forms of tangible and intangible aspects of culture that involve the customs and practices of traditional and indigenous cultures. This panel is deliberately broad in its scope as it seeks to link substantive and enforcement elements of private and public international law with a wide range of interests and themes in cultural heritage and the arts.

The focus of this panel may include: the restitution of cultural assets arising from theft or illicit excavations, including stolen works of art and looted antiquities; the illicit traffic and trade of cultural property from land and/or underwater sites; litigation and arbitration of disputes over ownership of works of art and antiquities, including issues of state immunity; the preservation of historic and world heritage sites; the protection of cultural property in armed conflict and its restitution following looting during armed conflict; museum law; and underwater archaeology and cultural heritage more generally. It could also focus on the protection of the built and natural heritage (including cultural landscapes).

Forum 4: Investment Law at the Crossroads of Public and Private International Law

This panel will address the tension between public and private law aspects in international investment law in the following terms: How meaningful is the classification of public and private in this context? What are the public interests that arise in this context? Who are the appropriate guardians of the public interest (states, international organizations, NGOs)? Who should decide about the protection of public interests (tribunals, host states, home states, arbitration institutions)? What are the methodological consequences of the distinction between public and private matters (one-off dispute settlement on the basis of party submissions v. investment arbitration as governance)?

International Law and European Law

Forum 5: International and EU Law

European law has started as ‘a new legal order of international law’ (Case 26/62 Van Gend). Since then tendencies to emancipate and even isolate EU law from the wider body of international law have been undeniable. This panel will address not only the specifics of EU law. It will also deal with the still unsettled relationship between EU law and international law. Is the EU system ‘monist’ or ‘dualist’? Is EU law akin to national law from an international law perspective or should it be regarded as a treaty-based subset of regional norms? What are the legal implications of treaties concluded by all or some member states for the EU? Is the Union held to respect customary international law? Are there other grounds leading to the international responsibility of the EU? Seemingly theoretical questions can have highly practical implications. Recent EU litigation such as the Kadi saga has provided ample illustration of this development. The panel on international law and EU law will go beyond Kadi in exploring the relationship.

International law and other disciplines, sciences and arts

Forum 6: International Law and Philosophy: The Legitimacy Deficits of International Law

International law broadens its domains, increases in specificity and bolsters its effectiveness. Such increased impact spurs challenges: with what right does such law and its bodies claim authority, that other actors on international arenas should defer, on issues ranging from human rights and criminal law to investment, trade and the environment? The history of international law is replete with calls and responses to such challenges, from Grotius, Pufendorf, Vattel and Kant onwards.

The forum draws on the tradition and recent contributions to explore three clusters of contested normative standards for international law as its impact expands, not least with the recent growth of international courts and tribunals. Such standards and how to institutionalize them have received much but not sufficient attention in recent contributions. Regarding origins: the normative significance of consent by sovereign states and other bases of legitimacy; Concerning function of international institutions: what sort of accountability – democratic, professional and otherwise – is required whilst compatible with the requisite independence?  And concerning effects: how does actual compliance and lack thereof affect the legitimacy of international law?

Forum 7: International Law and International Relations: Stability and Change

The notions of stability and change encapsulate important dimensions of what actors value in law, and expect from law. Law is commonly associated with order, predictability, certainty and, hence, stability. But since law operates within society, it must change, even promote change, as social values evolve or new social, economic, technological or environmental challenges and opportunities arise.

The theme of stability and change marks out productive terrain for exchange between international law and international relations (IR) scholars because it invites engagement with many of the persistent doubts and assumptions about international law, in particular as it relates to international politics. Many observers, especially international lawyers, assume (or hope) that international law can be stabilized through emphasis on formal sources, codification in treaties, constructs like jus cogens, or projects like constitutionalization. And yet, since it rarely operates as hierarchical imposition of authority, many observers, including both lawyers and IR scholars, also perceive international law as unstable, fragile or fluid. The underlying assumption often is that it is contingent on dominant values, interests, and power; international law is stable so long as those forces are stable, and it will change as they do.

This forum will primarily focus on questions concerning stability and change in international law itself, bearing in mind their implications for inquiries into law’s role in promoting stability or change in international society. For example, does international law have inherent stability and, if so, what accounts for that stability? Are legal norms more or less open to change than other norms in international society? What are the salient differences between customary and treaty law in this context? What are the devices through which stability is provided or change promoted in international law?

The forum will address these questions from different methodological and theoretical standpoints, including constructivist and rational-choice approaches in IR. The goal is to not only to illuminate the theme of “stability and change” but also to illustrate differences and complements, as well as strengths and weaknesses of the respective approaches.

Forum 8: International Law and Psychology

Whereas the rational choice approach to international law has been widely accepted in legal scholarship and international relations theory, challenges to the rational choice paradigm in economic analysis of international law by cognitive psychology has hitherto not been systematically explored.  Nevertheless, behavioral law and economics/cognitive psychology have been successfully applied to national law constellations. Those insights have furthermore been used by international relations scholarship under the heading of political psychology but here, international norms play no role. This Forum explores the potential and challenges of psychological approaches to international law and thus aims to start filling a research gap currently existing.