Secondary Rules of Primary Importance in International Law Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals

by Kajtár, Gábor; Çali, Basak; Milanovic, Marko

• ISBN13: 9780192869012
• ISBN10: 0192869019
• Format: Hardcover
• Copyright: 2023-02-28
• Publisher: Oxford University Press

Summary

The focus of this edited volume is the often-overlooked importance of secondary rules of international law. Secondary rules of international law-such as attribution, causality, and the standard and burden of proof-have often been neglected in scholarly literature and have seen fragmented application in international legal practice. Yet the systemic nature of international law entails that coherent and consistent application of such rules is a key element in reinforcing the legitimacy of decisions of international courts and tribunals. Accelerated development of international law and international litigation, coupled with the fragmented nature of the adjudicatory terrain calls for theoretical scrutiny and systemic analysis of the developments in the judicial treatment of secondary rules.

This publication makes three important contributions to the study of secondary rules. First, it offers a comprehensive, expert doctrinal analysis of how standard of review, causation, evidentiary rules, and attribution operate in the case law of international courts or tribunals in fields spanning human rights, trade, investment, and humanitarian law. Second, it comparatively evaluates the divergent layers of meanings and normative expectations attached to secondary rules in international law scholarship as well as in the judicial practice of international courts and tribunals. Finally, the book investigates the role that secondary rules play in the development of the primary rules in international law and for the legitimacy of the decisions of international courts and tribunals.

Earlier scholarly works have not problematized the role of secondary rules of international law in adjudication thoroughly. Secondary Rules of Primary Importance in International Law seeks to fill this gap by emphasizing the consequential nature of these secondary rules and argues that the outcome of litigation is fundamentally shaped by the exact standard of proof, standard of review, or attribution basis that is chosen by adjudicators. As such, the book offers an important resource for the study and practice of international law against the backdrop of the wide-ranging and fragmented nature of international adjudication.

Author Biography

Gábor Kajtár, Associate Professor, ELTE Law School,Basak Çali, Professor of International Law, Hertie School,Marko Milanovic, Professor of Public International Law, University of Nottingham

Gábor Kajtár is Associate Professor in International Law at ELTE Law School Budapest. He holds a Law degree, an MA in Political Sciences, and an LL.M. degree from the University of Cambridge (2007). His Ph.D. dissertation concerned the self-defence against non-state actors and was awarded the Pro Dissertatione Iuridica Excellentissima Award, given to the best legal PhD dissertation in 2013-2014 by the Hungarian Academy of Sciences. Dr. Kajtár was a Visiting Researcher at Harvard Law School in the academic year 2015/2016, a Leibniz Fellow at the Max Planck Institute in Heidelberg in 2017, and a Visiting Fellow at the Lauterpacht Centre in 2019. Dr. Kajtár has been the coach of ELTE Jessup Team since 2009 and the ELTE Telders Team since 2016. In 2019 his team won the Jessup World Championship Final in Washington DC.

Basak Çali is Professor of International Law at the Hertie School and Co-Director of the School's Centre for Fundamental Rights. She is an expert in international law and institutions, international human rights law, and policy. She has authored publications on theories of international law, the relationship between international law and domestic law, standards of review in international law, interpretation of human rights law, legitimacy of human rights courts, and implementation of human rights judgments. She is the Chair of the European Implementation Network and a Fellow of the Human Rights Centre of the University of Essex. She has acted as a Council of Europe expert on the European Convention on Human Rights since 2002. She has extensive experience in training members of the judiciary and lawyers across Europe in the field of human rights law. She received her PhD in International Law from the University of Essex in 2003.

Marko Milanovic is Professor of Public International Law at the University of Nottingham School of Law and Co-Director of its Human Rights Law Centre. He is co-editor of EJIL: Talk!, the blog of the European Journal of International Law, as well as a member of the EJIL's Editorial Board. Professor Milanovic was formerly Vice-President and member of the Executive Board of the European Society of International Law. He held visiting professorships at Michigan Law School, Columbia Law School, Deakin Law School, the University of the Philippines College of Law, and the Geneva Academy of International Humanitarian Law and Human Rights.

Table of Contents

1. Introduction: Secondary Rules of Primary Importance, Gábor Kajtár, Basak Çali, and Marko Milanovic
Part 1 - Standard of Review in International Law
2. Explaining Variations in Standards of Review in International Adjudication, Eyal Benvenisti
3. Standards of Review in the Practice of International Courts and Tribunals, Vladyslav Lanovoy
4. Saving Regulatory Space for States through the Standard of Review: A Case Study of Tobacco control-related International Disputes, Lukasz Gruszczynski
5. Science, Legitimacy, and the Judicial Function: A Need for More Intrusive Standards of Review, Katalin Sulyok
Part 2 - Causation in International Law
6. A Missed Secondary Rulea Causation in the Breach of Preventive and Due Diligence Obligations?, Alice Ollino
7. Depolluting the Doctrine on Causation in International Investment Law: The Case for Extracting Legal Causation, Martin Jarrett
8. A Priori Causal Inferences in the Law of the World Trade Organization, Catherine E. Gascoigne
Part 3 - Evidentiary rules in International Law
9. Presumptions as Secondary Rules in the Judicial Interpretation of International Human Rights, Tilmann Altwicker and Alexandra Ellen Hansen
10. Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights, Basak Çali
11. The Evidentiary Implications of a Party s Non-Participation in the Proceedings, Christopher Lentz
Part 4 - Attribution in International Law
12. State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights, Marko Milanovic
13. A Comparison of the Rules of Attribution in the Law of State Responsibility, State Immunity, and Custom, Christina Binder and Stephan Wittich
14. Untangling the Relationship between Attribution and Due Diligence in Investment Law and Beyond, Jure Zrilic
15. Fragmentation of Attribution in International Law, Gábor Kajtár