Internationaal recht

Onderstaand kan iedere geïnteresseerde bezoeker de volledige tekst lezen van mijn Thesis over International Law, afgerond en geregistreerd op 2 September, 2016 aan de Universiteit van Amsterdam. Het is de academische onderbouwing van wat de bezoeker vindt onder de service van het Issues Management Institute ‘Juridisch en linguïstisch perspectief op internationale communicatie’.

Fortress of Invincibility
The Backfire of Linguistic Weaponry in International Law

 

E. Schoonman
University of Amsterdam                                                                                                                                             Faculty of Law                                                                                                                                                    Master thesis International Public Law

 

Table of Content

  1. Introduction 8
  2. Looking for Meaning in International Law 9

2.1        Speech Act Theory  9

2.1.1 Illocutionary force  9

2.1.2 Comparison with domestic law  9

2.1.3 Assertives and the locutionary level 10

2.1.4 Locutions and tautologies  10

2.2        Logical Semantics  11

2.2.1 The consent of Sovereign States  11

2.2.2 Aristotelian fallacies  11

2.2.3 Reductio ad absurdum   12

2.2.4 Article 38 Statute of the ICJ  13

2.2.5 Customary International Law  14

2.2.6 The Relevance of Falsifiability  16

2.3        Lexical Semantics  16

2.3.1 Wording and Interpretation Theory  16

2.3.2 Endless or limited interpretation  17

2.3.3 The Paradigmatic Issue  17

2.3.4 Infinite Freedom to add Meaning  18

  1. Looking for Power in International Law 19

3.1        Comparing Vitoria and Grotius  19

3.1.1 Francisco de Vitoria  20

3.1.2 Tautological reasoning  20

3.1.3 Hugo Grotius  21

3.1.4 A lawyerly willingness to construct arguments  21

3.1.5 General Principles and an Unimpeachable Axiom   22

3.1.6 Rhetoric  22

3.2        Contemporary Legal Practice  23

3.2.1 Article 31 Vienna Convention on the Law of Treaties  23

3.2.2 The Goodwin case: the intent of a hypothetical speaker 24

3.2.3 ICSID and ius cogens  24

  1. Fortress of Invincibility and the Backfire of its Linguistic Weaponry 26

4.1        Third World Approaches to International Law (TWAIL) 26

4.2        New International Economic Order 27

4.3        Critical Legal Studies  27

4.4        The Pragma-Dialectical Approach to International Law  28

  1. Conclusion 30

Bibliography  31

Judgments and Decisions. 38

 

Abbreviations

AP I                                   Additional Protocol (International Committee of the Red Cross)

CIL                                    Customary International Law

CLS                                    Critical Legal Studies

CUP                                    Cambridge University Press

EEZ                                    Exclusive Economic Zone

GATT                                 General Agreement on Tariffs and Trade (1947)

GC                                      Geneva Conventions

ICJ                                      International Court of Justice

ICSID                                  International Centre for Settlement of Investment Disputes

ICTY                                    International Criminal Tribunal for the former Yugoslavia

IL                                         International Law

ILC                                      International Law Commission

OUP                                    Oxford University Press

PCIJ                                    Permanent Court of International Justice

TWAIL                                Third World Approaches to International Law

UDHR                                  Universal Declaration of Human Rights

UNCLOS                              United Nations Convention on the Law of the Sea (1982)

US Rep                                 United States Reports

VCLT                                     Vienna Convention on the Law of Treaties

WTO                                     World Trade Organization

Symbols

→                                     if … then

⇒                                     therefore

⊤                                     Tautology (is always true)

∧                                    and

∨                                    and/or

¬                                    negation

Hypothesis

International law is indisputable. This indisputability rests on the obscurity of the meaning of the texts that make out the corpus of international law. This did not happen by accident. International law is designed as an invincible fortress. The weaponry used is deletion of illocutions, the use of tautologies, broad interpretation and endless possibilities of meaning. It is neither falsifiable nor verifiable, which clearly indicates a choice for rhetoric. This choice surely contributed to the ambit and level of invincibility, an invincibility avidly utilized by powerful states.

We will address the hypothesis as follows:

First, we will be looking for meaning in international law and will consider Speech Act Theory and pragma-linguistics: directing meaning and referring to the resources for conveying illocutionary acts.

Second, we will address the quest for meaning from the perspective Semantics. First of Logical Semantics and what is generally understood by tautologous reasoning, from which point we will proceed to an evaluation of the use of propositional logic in international law. Second, we will examine the meaning of a legal text from the perspective of Lexical Semantics, notably with Interpretation Theory, and consider if the rules of interpretation reduce or enlarge the possibilities of meaning in international law. Third, we will focus on the indisputability of international law by trying to tie both branches of semantics to academic standards of falsifiability and consider what the relevance of this notion is in terms of invincibility.

Third, we will be looking for power in international law and will search for verifiability, more in particular in the texts of the forerunners of modern international law Vitoria and Grotius, and we will link this to the use of rhetoric.

Finally, we will consider contemporary legal practices as regards the supposedly invincible construct from the perspective of the practice of ICSID and of Treaty Law. We will proceed by taking a look at the contesters of international law notably the dialectical approaches of TWAIL and CLS. We move beyond that by considering the problem-solving abilities of the pragma-dialectical approach.

Summary

International law is an invincible fortress. It accomplishes this by rendering itself indisputable. Indisputability can be reached with different weapons. The lack of illocutionary force with Speech Act Theory and Pragma-Linguistics at hand, tautology and circularity, which we traced with propositional logic, an abundance of meaning for which we will discuss Interpretation Theory, and finally the foundational use of rhetoric that we traced back to the forerunner of international law, Vitoria, in the 16th century and onwards as a legal girder to colonialism. Finally, we put our findings to the test in contemporary Treaty law and the ICSID Convention, rooting, as it does, in the decolonization process. We conclude that the weaponry perishes on the one hand, whilst being seized by new, powerful states with a desire for the fortress of invincibility on the other hand.

  1. We observed a lack of illocutions in international law and we supposed this was not by accident, since we did find illocutions, by comparison, in domestic law. Lack of illocutions therefore is not a feature of law per se. Ousting the illocutionary force from the international law text prevents a relevant linguistic tool for detecting meaning to do its guiding work. This pushes the texts of treaties and their case law interpretation to the level of the locution, the level of grammar and logical and lexical semantics.
  2. Furthermore, international law is indisputable. In order to establish the indisputability through logical semantics, we looked for the existence of tautologies. Indisputability can be reached in different ways, but the tautology is a strong one: it is indisputable by definition. Therefore, if international law is of a tautological nature, and anything tautological is indisputable, then international law is indisputable. The tautologies are situated at the level of words within one sentence, at the level of sentences within one provision, at the level of different provisions within one treaty, between two different treaties and between judicial decisions and (the sources of) international law. It is therefore fair to say that tautologies operate on every level of international law.
  3. Lexical semantics, in relation to freely floating words, generate endless elastic capacity as regards the meaning of texts. It comes as no surprise that international lawyers exploited this capacity to the full by using rhetoric to add the wanted meaning.
  4. These formidable weapons to protect ‘the Fortress of Invincibility’ render international law nor falsifiable nor verifiable, thus it can be challenged as being an academic discipline.
  5. International law, however, may never have been meant as an academic discipline as such. From the early days on, it did serve quite a different purpose, for which it does not need to meet any scientific demarcation criterion. On the contrary, its indisputability renders it invincible. It was formerly intended to define the State’s rights and responsibilities in international behaviour in trading and waging war.
  6. The used weapon then is rhetoric, in which international law shows more than just reminiscent of the days of yore when it used this technique for sustaining political powers. On the contrary, rhetoric in international law is omnipresent. The ambit larger than ever, the aim unchanged, the future is challenged by the untenability of this linguistic format.
  1. Introduction

Linguistic weaponry consists of different instruments. An important linguistic instrument is the illocution, the force that indicates intentions and thus the meaning of language. International law has omitted the illocutionary force from its texts. Therefore, the meaning is situated at the locutionary level on which semantics operate. One can e.g. detect meaning at this level by way of logical semantics. In propositional logic in linguistics, special attention is paid to fallacies that are in fact placed out of the argumentative order. The ‘tautology’ in particular is an Achilles heel: appearing valid but still a fallacy. It does not contribute to the meaning of texts. The tautology, or so-called ‘Petitio Principii’ fallacy, is also called ‘begging the question’. It begs the question because ‘the conclusion is effectively equivalent in wording or meaning to a premise on which it depends for support’.[1] It cannot be contradicted and is undisputable by definition. The tautology in international law appears on every level of legal texts and between different treaties and conventions. Lifting the ban on tautologies, international law enabled itself to stretch the meaning of legal texts almost to infinity. No wonder that the study of international law is deeply concerned with Rules of Interpretation. There is, however, yet another linguistic instrument in operation. The discipline that thrives on infinite possibilities and has no concern with fixed indicators of meaning: rhetoric. Without disciplining boundaries, rhetoric can be used to assert or ‘prove’ anything.

This linguistic armory then, renders international law indisputable. Anything indisputable does not meet a basic demarcation criterion for science, since indisputables do not contribute to the growth of scientific knowledge.[2] If international law is of such indisputability, then this would challenge international law as an academic discipline. But then, why should it be an academic discipline in the first place? Merely because it is taught at universities by graduated professors? Or because the non-legal community expects the legal community to produce scientific knowledge? One can hardly accuse a professional community of not being something it does not pretend to be. But then international lawyers do occupy high-ranking positions in the world’s highest courts, they do draft treaty texts, and the legal community forms part of the academic community with prestigious faculties of law. Theirs is a discipline claiming rationality and objectivity. Therefore, one is inclined to say: noblesse oblige. The study of international law might qualify as an academic discipline[3], but does the same count for international law itself? When answered in the negative, the question if international law qualifies for something else comes into play. Its indisputability might be crucial for an entirely different aim, may even be indispensable to this aim. We extend the hypothesis to this aim, notably to be an invincible instrument for the political power, a practice that international law has refined during the centuries. Lack of illocutions, tautological reasoning, broad meaning and rhetoric, are must-haves: highly effective[4], it is this weaponry that renders the fortress of international law invincible.

It remains to be seen if this era has (to) come to an end.

  1. Looking for Meaning in International Law

We will discuss international law from a linguistic perspective. This is rather self-evident since its corpus consists of conventions and treaties, resolutions of international organizations or judicial decisions that are delivered in natural language.

2.1          Speech Act Theory

Speech Act Theory is concerned with different levels of meaning in language. Language itself has different meaning detecting tools. One of these tools is to be found in the structure of the speech act, being the sentence or utterance. A speech act defines what we actually do with words.[5] Speech Act Theory[6] postulates that any utterance executes three acts simultaneously. Any sentence involves:

  • A locutionary level, at which the phonology, the grammar, the wording and semantics are established;
  • An illocutionary level,[7] at which the understanding of the meaning of the sentence uttered is established; and
  • A perlocutionary level, at which the effect of the particular speech act is performed.

2.1.1 Illocutionary force

The meaning of language is executed at the illocutionary level. It is hardly possible to overestimate the linguistic tool that enables us to detect the meaning of words[8] and sentences by their illocutionary force. A sentence without this force leaves us guessing its meaning. Suppose one is to receive a letter of the municipality stating that one’s child is turning four years at a certain date. This, by the looks of it, is the speech act called an assertive, it informs the reader of something. But since it informs the only reader that, of all people, exactly knows the birth date of the child in question, and the reader knows that the author also knows this, the reader is forced to rethink the meaning of the assertive, since the information contained in it is obviously superfluous. The speech act concerned is indeed another, it is a declarative. The municipality tells the parents they are changing rule systems. From the one without public education law officer, to the one with such a public official. That is the illocutionary force here, leading us to a relevant meaning of the utterance. Yet this is what seems to lack in international law. International law has weakened if not removed the illocutionary force from its legal texts. We therefore miss a necessary linguistic instrument to detect the meaning of language.

2.1.2 Comparison with domestic law

When e.g. compared to Dutch domestic criminal law we see that this is predominantly a collection of instructions to the court. Article 300 of the Dutch Criminal Law reads: ‘Physical abuse shall be punished with a jail sentence with a maximum of three years of detention or a fine in the fourth category’. This domestic law, in other words, is a bundle of directives,[9] an important category of illocutionary acts. International law, by contrast, would presumably undo this clause from its illocutionary force. Then it would probably read: ‘Physical abuse shall be interpreted in accordance with the ordinary meaning of these words’. Or they would replace ‘torture’ for ‘physical abuse’ such as: ‘For the purposes of this Convention, the term ‘physical abuse’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (…)’ etc. following the format of the Torture Convention. This lack of illocutionary force in international law puts words in a vacuum, forcing interpreters and scholars, as indeed is the case, to look for meaning elsewhere and to formulate rules of interpretation, predictably bringing not much solace either: ‘each method of interpretation remains unstable and can produce a variety of rules, meanings, or discourses. Indeed, it is a truism that none of the traditional methods of interpretation, can mechanically produce one single stable meaning, whether [the method of interpretation is] textualism, intentionalism, or purposivism’.[10] This trio bears a remarkable if not altogether unexpected resemblance with the division in locution, illocution and perlocution: wording, intention and aim.

2.1.3 Assertives and the locutionary level

Without the illocution there is no perlocution, hence the aforementioned intentionalism and purposivism as methods of interpretation rarely produce ‘single stable meanings’. International law leaves us with the speech act called assertive, the only speech act close to the locution, the ground on which semantics operate.

In the early days of Speech Acts Theory, five classes of speech acts were described[11]. Next to directives there exist assertives, commissives, expressives and declaratives, the last of which changes the existing social or legal rules into a different set of rules such as in “I open this meeting” or “I declare thee husband and wife” or “Your son will turn 4 years”.

The weakest seems to be the category of assertives. Weak, because they feebly stand alone. Imagine someone saying: “I loved my visit of the Eiffeltower in London”, an assertive with no apparent illocutionary force that makes us stumble in the dark looking for its meaning. Or reversely, every other class of speech acts needs some form of assertive. Even the classic example “Could you pass me the salt please”, a straightforward directive, needs this assertive in its own right to carry the illocutionary force. In other words, assertives are very close to the locutionary act.

2.1.4 Locutions and tautologies

With an assertive, the producer of the language commits herself to the truth of the proposition she has written or spoken. Truth however, as we will discuss further on, is not a particularly relevant category in international law, and without any illocution to lead to certain interpretations and meaning, the assertive stands as in the nude. It should be noted that speech acts are linguistic tools for which one does not need any context.[12] One does not need to know whether the relation between two speakers is father and child or judge and criminal to know that “You have to stop doing this” is an order, uttered from A to B, regardless of relation or context. In pragma-linguistics knowledge of the structure and expressive resources of the language itself suffices.

The lack of illocutionary force might have its advantages at the level of not directing to (a categorized) meaning, it certainly also qualifies as a weapon to protect the impregnable fortress of international law from attacks by speech acts theorists: international law simply ousted one of the laws of meaning in natural language.

“Why do you sit here all alone,” said Alice.

“Why, because there’s nobody with me,” cried Humpty Dumpty.[13]

Humpty Dumpty (deliberately) misses the illocution and defines the ordinary meaning of the word ‘alone’. He did not address the directive, but the assertive at locutionary level, where tautologies are always waiting in the wings. He is sitting alone. Because he is sitting alone.

2.2          Logical Semantics

Logical Semantics is the study of meaning in natural language using logic as an instrument. It explores sense and reference, presupposition and implication as well as the interpretation of expressions. In defining meaning, sense and interpretation, it is also concerned with the concepts of definability and ‘truth’.[14]

2.2.1 The consent of Sovereign States

Indisputability cannot be contradicted nor denied. ‘The traditional narrative reads that international law is authoritative (…) because it rests on the consent of sovereign States’.[15] The sovereign State is the authority, so anything (acting) under its umbrella is authoritative. To assert that the authoritativeness of international law rests on two (or more) authoritative entities that agree on something is therefore hardly deniable. This tautological reasoning is considered invalid. However, it does render undisputable. Tautology is a robust backbone of indisputability. In order to look for it in international law we must have a well-defined idea as to what a tautology exactly entails. Considered despicable in many circles[16], some international lawyers reduce tautologies to ‘pleonasms’, its most harmless form,[17] such as in ‘the Nicaragua case[18] [where] there are references to something called ‘sovereign statehood’. [S]overeign statehood (…) has the appearance of a tautology’.[19] This might be so, but it has the innocence of a wooden tree stump under a hot sun. It suggests that ‘something is true by repeating the same in different words’.[20] It is redundant, but not much more than that.

2.2.2 Aristotelian fallacies

Aristotle described the logical fallacy as a tautology, an argument that relies on the conclusion that the argument is intended to prove. But a theorem cannot be proved by something that the theorem is intended to prove.[21] It means that the definiens, the phrase or word that defines the definiendum (that what is to be defined) is taken to be true rather than that the argument is in need to be proven.[22] ‘A fallacious argument[23] (…) is one that seems to be valid but is not so’,[24] stronger still, ‘[a] fallacy is a particular kind of egregious error, one that seriously undermines the power of reason in an argument by diverting it or screening it in some way’.[25]

The basic skeleton of this fallacy is:

A → A; A, ⇒ A

This tautology, the Law of Identity[26] merely defines itself as itself and as such stands opposed to its possible contradiction. We recognize Humpty Dumpty sitting alone at locutionary level.

Another variant is:

A=B ∧ B=C ⇒ A=B

In this case, C is in fact irrelevant.

In international law we also encounter the variant:

A ∧ ¬A

This we hold for A (A), unless we do not hold it for A (¬A), the minimal tautology.[27] This brings us to the heart of propositional logic, which operates on the assumption of truth-functional connectives. ‘Logical semantics is primarily concerned with the truth-values of sentences. The meaning of expressions other than sentences is analyzed purely in terms of the contribution they make to the truth conditions of sentences in which they occur’.[28] A connective links two sentences to create a composite sentence. Sentences have truth-values, indicated in the literature as 1 for true and 0 for false. ‘The principle of compositionality requires that the meaning and thus the truth value of a composite sentence depends only on the meanings (truth values) of the sentences of which it is composed’.[29] Even in elliptical form the words can count as a sentence if they are strong enough to carry the weight. One cannot eat the cake and have it: there is no way in which two connectives that are each other’s opposites, still deliver a true composite. In that case either of the one is false, thus leaving us in a 1 and 0- or a 0 and 1- situation.[30] Still, in international law, this practice is far from uncommon. ‘UN Law of the Sea Convention (UNCLOS), Article 87 reads: “Freedom of the high seas … comprises, inter alia …”. ‘Comprises’ (in French: ‘comporte’) is exhaustive, used to list all contents. ‘Inter alia’ (in French: ‘notamment’) is non-exhaustive, leaving some contents unlisted. A contradiction -completeness versus incompleteness- that leaves the text crudely uncertain as a rule of law. [This] bolting-together of a contradiction, mak[es] [a] provision worse than useless’.[31] Indeed worse than useless, because it is exactly this practice that opens the door to the tautological character of international law.

2.2.3 Reductio ad absurdum

Let us elaborate on another of the (numerous) variants of the tautology, the reductio ad absurdum:

[(¬A → B) ∧ (¬A → ¬B)] → A

If not-A implies both B and the negation not-B, then not-A must be false, then A must be true. Or;

[(A → B) ∨ (A → ¬B)] → ¬B

If A implies both B and the negation not-B, then B must be false, then not-B must be true.

Let us put this to the test with the UN Convention against Torture.[32]

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (…) when such pain or suffering is inflicted by or at the instigation of (…) a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (emphasis added).

If we are to qualify something as torture (A), then it has to be instigated by a public official (B). Torture (A) -however- does not include pain and suffering inherent in lawful sanctions (¬B). Obviously a lawful sanction is something instigated by a public official and vice versa. This is an open-and-shut reductio ad absurdum at the level of two sentences in one provision. More implicitly this happens with the Montevideo criteria[33] codifying declarative theory of statehood as part of Customary International Law in Article 1:

The State as a person of International Law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other States.

The declarative theory of statehood in Article 3 stipulates that the ‘political existence of the State is independent of recognition by the other States’. It does appear impossible to enter into relations with the other States when they refuse to recognize the State applying for statehood, which gives Article 1(d) its circular twist. International Humanitarian Law shows the same pattern of explicit or implicit circularity, such as the doctrine of reciprocity. ‘An important element in guaranteeing respect for humanitarian law results from the idea of reciprocity’.[34] Unless it does not result from the idea of reciprocity. ‘Article 1 Geneva Conventions (GC) rejects the tu-quoque or do-ut-des-principle[35]: the obligations of the GC and the Additional Protocol 1 (AP 1) are not based on reciprocity’.[36] ‘The wording of Article 1 common to the GC undertake to respect and ensure respect for the present Convention in all circumstances. These unconditional obligations [however, add. mine] do not depend on reciprocity’.[37] This then is the pattern: in all circumstances and/or not in all circumstances (A ∨ ¬A). Obligations are unconditional unless they are not unconditional. It is not one or the other, but one and the other. A ∨ ¬A, or A ∧ ¬A: ‘Humanitarian law treaties are binding only between those states parties to them. (…) In the 1991 Kuwait conflict, several of the coalition states were parties to AP 1, but they were not obliged to apply its provisions in the conflict because Iraq was not a party. Many provisions of AP 1 comprise general principles of law and are as such applicable to all states in the Kuwait conflict’:[38] [(¬A → B) ∧ (¬A → ¬B)] → A, where A is ‘no obligations’ and ¬A is not-no obligations. It is only binding on some states and yet on all states.

The lack of appreciation of truth-values might have its advantages at the level of treaty negotiations, it certainly also qualifies as a weapon to protect the impregnable fortress of international law from attacks by logicians: international law ignores the laws of propositional logic because it wants the purport of the texts always to be true in whichever true-false combination: it wants to have the cake and eat it.

2.2.4 Article 38 Statute of the ICJ

Article 38 of the Statute of the ICJ is the sources article. The mere fact that international lawyers refer to this article in the so-called ‘sources theory’ is a remarkable indicator of circularity: Article 38 does not comprise the sources of international law. Article 38 is international law.[39] Simply because international law says it is.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall, according to Article 38(1), apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilised nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
‘[T]he common wisdom is that the theory of sources constitute a set of ‘secondary rules’ of international law, which, at face value, seems to equate these systemic principles to rules properly so-called. This is also the impression generated by Article 38 of the Statute of the ICJ, which is often regarded as the gospel in terms of law-ascertainment’.[40] In international law ‘existential interpretation (…) arise with respect to secondary rules via sources doctrine’.[41] Various roles are claimed ‘for sources doctrine, including as a ‘rule of recognition’ or international law’s ‘secondary rules’ more generally. Contested question[42] is if Article 38 constitutes ‘an exhaustive list of ways to create international law’s primary rules’.[43] The WTO[44] for one, corroborates the notion of State Practice which is considered ‘fundamental’ in the Article 38(1)(b) description of Customary International Law.

In US — Gambling, the Appellate Body states:

‘[T]he term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation’.[45]

Here, we encounter the classical pleonasm. Public morals are just as much standards of right and wrong conduct as tree stumps are made of wood. The case-law Frozen Beef[46] e.g. terms the meaning of ‘necessary’, needing the word ‘indispensable’ within the wording of Article XX(d)[47]. International law is an abundant treasury of pleonasms and tautologies.

2.2.5 Customary International Law

Article 38 introduces ‘international custom’,[48] which consists of ‘evidence of a general practice accepted as law’ and ‘opino iuris’, Article 38(1)(b). These are the two basic elements in the make-up of a custom, ‘the material facts, that is, the actual behaviour of states, and the psychological or subjective belief that such behaviour is ‘law’.[49] [C]ustomary law is founded upon the performance of state activities and the convergence of practices, in other words, what states actually do (emphasis added)’.[50] What most States actually do however, is e.g. practicing torture. The subjective belief might mean (implicit) recognition of this jus cogens, the material facts might mean that most States still practice torture.[51] ‘State Practice’ as codified in Article 38(1) then is probably not the ‘ordinary meaning’ as we were taught to take as the dominant lead in Article 31(1) Vienna Convention on the Law of Treaties (VCLT). What else could the ordinary meaning be but the ‘Practice of States’. This reasoning follows implicit analogy: ‘[N]o State has ever claimed that it was authorised to practice torture (…) When a State has been taken to task because its officials allegedly resorted to torture, it has normally responded that the allegation was unfounded, thus expressly or implicitly upholding the prohibition of this odious practice’.[52] Denying the existence of something to acknowledge it exists bears an awkward resemblance to the logical paradox of Bertrand Russells denotion ‘The present King of France is bald’.[53]

Article 38 (1)(c) refers to ‘general principles’, categorized as follows:[54]

  1. Principles inherent to the Concept of Law, such as good faith;[55]
  2. General Principles of Law consonant with the basic requirements of international justice;[56]
  3. General Principles of Law recognized by all nations;[57]
  4. General and well-recognized principles, such as the obligation of States not to have their land used for activities in violation of the rights of other States.[58]

The International Court of Justice dealt with the creation of a custom on the basis of what had been purely a treaty rule’,[59] ever since the Paquete Habana case onto the Continental Shelf cases and other case law outlining customary international law.[60] The tautology of the argument about custom in CIL is formally established: ‘[T]he psychological element is defined by the material and vice-versa‘ (emphasis added).[61] It was to stay in many treaties to come. Even in Memoranda of Association of International Organizations. Article 3(2) of The Agreement Establishing the World Trade Organization e.g. reads:

The Members recognize (…) to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.

International law is like an encyclopedia, endlessly defining its definitions, appearing to be neither falsifiable nor verifiable, because on the referential level the source refers to the source. Article 38(1)(d) Statute of the ICJ is probably the most prominent example of this:

The Court shall apply (…) judicial decisions (…) as subsidiary means for the determination of rules of law.

The sources here are the ‘judicial decisions’, which means that Article 38(1)(d)[62] does not point forwards, but backwards: it points to itself. This completes Article 38(1) as a whole as a codification of the tautology in Customary International Law.

2.2.6 The Relevance of Falsifiability

‘A formal logical argument may only take place within a system which is complete, contains no internal contradictions, and where the terms are univocal and unambiguous’.[63] If so, than it is hard to see why international lawyers did not eagerly grab any possibility to render their material at least somewhat less internally inconsistent. Instead, they traded it for ambiguous texts, bringing in, where they did not have to, true and false as a Siamese twin. Viehweg asserts that natural language is inherently ambiguous, combining ‘within itself an almost incomprehensible abundance of continuously varying horizons of understanding’.[64] This is obviously not the case. On the contrary, if international law would strive for ‘truth values’ it could have and would have put a ban on tautologies.

We postulate that International Law wants to be tautological. It is a formidable weapon to become indisputable. For indicative conditionals, correct usage means the user does not know ‘whether the antecedent and consequent are true or not. The consequent q (International Law is indisputable) is a stronger proposition than the whole implication p → q, ‘which is a logical consequence of q. So all other things being equal, the Maxim of Quantity[65] requires us to state the stronger q if we can do so correctly’.[66] Our belief that p → q is true derives from our conviction that a situation in which p is true and q is false cannot arise. Thus in ‘If International Law is tautologous, then it is indisputable’, ‘International Law is indisputable’ is the stronger q, and p → q is true because the situation cannot arise that ‘International Law is tautologous’ is true, and ‘International Law is indisputable’ is not. It is this indisputability, well served by unfalsifiable ambiguities and tautologies, that renders it invincible.

2.3          Lexical Semantics

Traditionally semantics does not only cover logical semantics, but also lexical semantics, concerned with the analysis of word meanings and relations between them. Therefore we need to look at how international law stands in this linguistic domain. ‘Texts must be interpreted as they stand, and, prima facie, without reference to extraneous factors’.[67] ‘Scholars with a (…) positivist bend would place emphasis on the wording of the text itself’,[68] which ‘must be presumed to be the authentic expression of the parties’.[69] Any judiciary needs to interpret the applicable law in the specific case context. That interpretation needs ‘to be couched within the argumentative standards contoured by the rules of interpretation’.[70] Different judges and different institutions ‘[have] sought to find a solid basis for their decisions in the ordinary text of the treaty they are called upon to apply. The form of the argument thus strongly suggests that words themselves would give away the answer to disputes about their interpretation’.[71] The WTO Appellate Body underscored this in its Shrimp and Shrimp Products case-law: ‘[a] treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted’.[72] This stands in a longer tradition.

2.3.1 Wording and Interpretation Theory

The Permanent Court[73] once held that ‘a tribunal interpreting a convention clause must endeavour to ascertain from the wording of this clause what the intention of the Contracting Parties was; subsequently, it may consider whether (…) factors other than the wording (emphasis added) of the Treaty must be taken into account for this purpose’.[74] ‘Endeavour’ might leave the door slightly ajar, still we recognize the reasoning: ‘to ascertain from the wording’ ∨ ‘to ascertain not from the wording’. The tribunal has to be careful here as to what it admits entrance, else the whole benefit of codification will go amiss. In any case this interpretation of the act of interpreting, qualifies almost anything to mean anything and contradicts the robust ‘a treaty shall be interpreted in accordance with the ordinary meaning’ in Article 31(1) VCLT.

This sheds a different light on the remark that ‘the interpretive process involves creativity and the construction of meaning’.[75] ‘[B]y being constitutive of both the law itself and the world to which the law is meant to apply, interpretation can be either broad or restrictive. Indeed, interpretation can expand the realm of international law by qualifying norms that were previously considered alien to the international legal order as rules of international law. Interpretation can also broaden the ambit of international law by fleshing out the content of existing rules. Conversely, interpretation can be restrictive in that it can strip a rule of any meaningful content’.[76]

2.3.2 Endless or limited interpretation

Question then, is if interpretation or the attribution of meaning to a legal text is endless or limited. Those who believe the former, favor the Humpty-Dumptical[77] character of international law: ‘do words mean just what one chooses them to mean’.[78] Those who believe the latter, focus their view on ‘limited meaning’ and the rules of interpretation.[79] A limit then is found in ‘[t]he point at which an argument becomes untenable. [This] is when the cards[80] are used in such a way that they no longer purport to search, or actually search, for the intention of the parties’.[81]

Both the Humpty Dumpty-approach as the ‘Tenability is the Limit’-approach locate the meaning of a legal text at the locutionary level. This way to operate in finding the limits where an argument becomes untenable, however, is not a straight route to the border. On the contrary. The whole point of pragma-linguistics, and (logical and lexical) semantics is to make truth finding and meaning detection possible without the multi-interpretable world of context in which words are adrift on oceans of possibilities, let alone adrift on unarticulated voices of some entity called ‘international community’.[82] In a multitude of parameters, anything goes.

2.3.3 The Paradigmatic Issue

Many international lawyers and legal scholars assert that interpretation in international law has indeed serious paradigmatic issues, among which not least the circularity of rule-based approaches to interpretation.[83] They put on the research agenda ‘content-determination processes and law-ascertainment processes both seeking to define the lawful and the non-lawful’.[84] This brings in rather than denies the context, albeit it in terms of the articulated community, law-ascertainment being the ‘practice whereby the community of law-applying authorities shares some linguistic signs to determine its object of study and its objects of agreement and disagreement. (…) [There is] an inherent hegemonic dimension in each of these interpretive processes. Each of them seeks the universalization of meaning in relation to the specific context in which interpretation occurs. (…) [T]he idea of interpretive communities makes constraints on interpretation a question of ‘knowledge’, rather than being referable to a ‘list’ of rules’.[85] It is high time for this paradigm shift. Provided that international lawyers are not so adamant in tautological reasoning that it has become the dominant scholarly method as well. ‘Refusal to engage with this broader view of interpretive processes risks relegating international legal scholarship to the hamster wheel of studies on content-determination interpretation, where the rules, rather than the practice of interpretation is the perpetual focus’.[86] In international legal studies, a new paradigm on ‘interpretation’ did so far not prompt a paradigmatic change.

2.3.4 Infinite Freedom to add Meaning

Meanwhile, the lack of confining oneself to a limited set of parameters, and treating words, texts and their meaning Humpty-Dumptically, might have its advantages at the level of freedom of adding meaning[87], it certainly also qualifies as a weapon to protect the impregnable fortress from attacks by lexicalists, functionalists[88] and other theorists of science. With the treasury of ‘context’, international law gained an almost limitless quantity of parameters, uncommon to academic disciplines, and nobody to design the borders. And ‘any authority in a position to produce a single authoritative interpretation [to] impose it on all professionals’ is absent.[89] No authority and an auto-referential system such as international law indeed seem to indicate infinite freedom to add meaning.

  1. Looking for Power in International Law

International as well as European Law developed gradually during the centuries, peaking after World War II and in our days claiming supremacy over domestic law.[90] Here is not the place to trace the origins of international law in depth. It suffices to note that, staying with the doctrine of the freedom of the seas, this ‘principle of the free seas as it actually took shape (…) originated in Roman law, it was crystallized and clearly stated by the Spanish theologians, Vitoria, Suarez (and Fernandos Vázquez, add. mine) and Carruvias, and it was formulated as a rule of international law by Gentili’.[91] ‘Gentili was a strong supporter of the freedom of the seas, foreshadowing Grotius’ Mare Liberum’.[92]

3.1          Comparing Vitoria and Grotius

We will focus on the work of one of these forerunners of modern international law, philosopher, theologian and jurist Francisco de Vitoria (1483-1546),[93] his Relectiones being considered among the first works to address the law of nations, which was to become the international law of Christendom and the world at large’.[94] We will compare this to the work of Dutch jurist and scholar Grotius (1583-1645) as he ‘adopted the views earlier expressed by the distinguished Spanish theologians[95] (…) and the gospel of the freedom of the seas was the same as that presented years [before] by the English East India Company in a petition to King James’.[96] Judged by the many references to Vitorias De Indis et de iure Belli Relectiones (1557)[97] in the Mare Liberum (1609)[98], Grotius indeed integrated Vitorias work into his own, which enables us to discuss if Vitorias argumentative modus operandi was also integrated into work that was written, after all, half a century later. We preliminary put this to the test, merely replacing ‘Vitoria’ for ‘Grotius’, ‘city’ for ‘seas’, ‘Indians’ for ‘Portuguese’ and ‘Spanish’ for ‘Dutch’, with the following text:

“From the universal right to travel and sojourn Vitoria deduces that ‘To keep certain people out of the city as being enemies, or to expel them when already there, are acts of war”.[99] Thus any Indian attempt to resist Spanish penetration would amount to an act of war which would justify Spanish retaliation. Each encounter between the Spanish and the Indians therefore entitles the Spanish to ‘defend’ themselves against Indian aggression.”

We replaced this as follows:

“From the universal right to travel and sojourn Grotius deduces that ‘To keep certain people out of the seas as being enemies, or to expel them when already there, are acts of war’. ‘Thus any Portuguese attempt to resist Dutch penetration would amount to an act of war which would justify Dutch retaliation. Each encounter between the Dutch and the Portuguese therefore entitles the Dutch to ‘defend’ themselves against Portuguese aggression.”

This result of our little test shows that the replacement left the argument intact, so it seems justified to compare the argumentative reasoning of Vitoria and Grotius respectively.

3.1.1 Francisco de Vitoria

In Vitoria’s Second Relections on the Indians, the subtitle is: ‘On the Law of War made by the Spaniards on the Barbarians’. The word ‘Barbarians’ hits right on target. The Indians, the people he refers to, are from the point of view of Christian Europe, unbelievers. However, Vitoria purports that Spanish and Indians belong to different orders, ‘not bound by a universal, overarching system. [He] interprets the gap between them in terms of the juridical problem of jurisdiction’.[100] Vitoria establishes that Indians have the use of reason, are organized in polities and live according to social, legal and ‘even’ religious rules. Therefore he asserts an aspect of natural law called jus gentium is applicable, thought to be held in common by all peoples or nations, ‘in reasoned compliance with standards of international conduct’.[101] ‘As a result, it is precisely because the Indians possess reason that they are bound by jus gentium. (…) [Therefore] the Spanish have a right under jus gentium to travel and sojourn in the land of the Indians and (…) the natives may not prevent them’.[102] It goes too far to step into Vitorias arguments on universal law and natural law, in which Gordian knot we find ourselves when reading that one can ‘not be bound to a universal, overarching system’ and nevertheless ‘be bound to jus gentium’; what the result is however, is that ‘jus gentium naturalizes and legitimates a system of commerce and Spanish penetration’.[103] The bound/not-bound circularity becomes even clearer when Vitoria is arguing towards an ‘inescapable system of norms which is inevitably violated by the Indians. (…) [T]he ideal, universal Indian possesses the capacity of reason and therefore the potential to achieve perfection. This potential can only be realized, however, by the adoption or the imposition of the universally applicable practices of the Spanish’.[104] This sublime tautology almost overshadows an implicature at the level of the wording, notably ‘to sojourn’. ‘[O]wnership and dominion are based either on natural law or human law; therefore they are not destroyed by want of faith’.[105] Vitoria derives from this that unbelievers can own property, and that the Indians are indeed the true owners of their land. Here, the wording attracks our attention. Is it not so that one of the prerogatives of landownership is to keep unwanted visitors out, else they are trespassing? Well yes, unless of course, one is not the landowner. In which case, surely, visitors are just sojourning. It certainly has the appearance of the aforementioned discussion in lexical semantics and interpretation theory. It is a distinct possibility that international lawyers argued in the vein of “When I use a word, it means just what I choose it to mean” all along. From here it is but a small step to ‘one is a landowner ∨ one is not a landowner’ that we know so well in international law.

3.1.2 Tautological reasoning

From the universal right to travel and sojourn, Vitoria deduces that ‘any Indian attempt to resist Spanish penetration would amount to an act of war which would justify Spanish retaliation (…) and therefore entitles the Spanish to ‘defend’ themselves against Indian aggression and, in so doing, expand Spanish territory’.[106] This in itself of course does not establish the truth value of the universal right to travel and sojourn. Just because ‘something is true (or false) in one world does not mean it is true (or false) in another’.[107] Meanwhile, this reasoning[108] did turn out highly detrimental for the Indians. What we are facing here is what in linguistic cognitive theory is known as framing.[109] To frame a situation as ‘war’, and oneself in it as the ‘victim of aggression’, opens formidable rhetorical opportunities to justify ones behavior. In framing theory these more often than not unsubstantiated premises indicate the rhetorical frame which is only deniable if parties agree on the Burden of Proof, which we will address in the last section on pragma-dialectics. ‘We see in Vitoria’s work the enactment of a formidable series of maneuvers by which European practices are posited as universally applicable norms with which the colonial peoples must conform if they are to avoid sanctions (…).’.[110] Vitorias reasoning, at the level of the premises, the fallacy and the ambiguity, has served a certain purpose: to defend Spanish colonialism and even the atrocities the Spaniards inflicted on the Indians.

3.1.3 Hugo Grotius

Vitorias argument maintains to the full by some scholars who evaluated the work of Grotius. His ‘Mare Liberum [is seen] as a defence of the ‘indivisible trinity of commerce, war and plunder’[111] and thus as a foundation of colonialism and imperialism’.[112] Indeed Grotius is scrutinously following Vitorias reasoning.[113] The subtitle of the Mare Liberum, in first concept Chapter XII of the treatise De Jure Praedae, The Law of Prize and Booty, is most revealing also: The Right Which Belongs to the Dutch to Take Part in the East Indian Trade. Revealing because one wonders what universal norm in general and what question in particular is being begged here. ‘Invariably with circular arguments there is no actual question being asked. Instead, the ‘question’ in question is the issue that is being discussed or the claim being argued’.[114] In discussing the work of Vitoria we first turned to the rhetorical method and concluded what purpose it apparantly served. With the work of Grotius one is almost inclined to reason reversely. The Mare Liberum can hardly be interpreted without taken its genesis into consideration, if only because its preceding text, the Law of Prize and Booty, of which it bears many features and even complete texts, was a concrete assignment by the Dutch East Indian Company of which in a prior law-suit Grotius had already been the attorney.

3.1.4 A lawyerly willingness to construct arguments

The case preceding the Law of Prize and Booty and its Chapter XII, the Mare Liberum, started off by the Dutch United Company that had seized a ‘Portuguese vessel as a result of a fight begun by the Dutch – a clearly illegal act. (…) Shortly, all pretense was discarded, and we find the government itself ordering the directors of the Company to instruct their admirals and captains ‘to damage the enemy in the Indies, their persons, vessels and goods in all possible ways’.[115] ‘From this moment the United Company ceases to be a mere trading company; it becomes a Power waging war in the Indies. It represents the Republic in the fullness of its authority’.[116] When the Dutch captured a ‘large Portuguese galleon, the Santa Catherina, loaded with a fabulous amount of booty (…) a law-suit was filed in the admiralty court to determine the right to the award of the booty. (…)[S]entence was pronounced, and ‘the carack, together with all the goods which came out of it, were declared forfeited and confiscated’.[117] Grotius was so enthusiastic about the booty that he described the prize in De Jure Praedae as ‘the finest and true fruit of the trade with the Indies’. In order to meet negative public opinion, the Company asked Grotius to explain in writing why they had every right to act as they did. ‘It was only natural that the Company should employ the same attorney who had so ably represented it in its law-suit in the admiralty court’.[118] Thus Grotius wrote what later was to become known as De Mare Liberum, as yet as part of the Jus Praedae, under the chapter title: Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company[119]. It is clear from this wording and format that it is meant as a counsel’s address to the court. As to its original content, in which Grotius seeks to vindicate the conduct of the East India Company, [his] ‘method exemplifies a lawyerly willingness to use the materials at hand to construct arguments about what the law is or could be’.[120] As any lawyer would, he stresses the arguments favorable to the client, and omits the ones favorable to the other party. By all accounts of the day Grotius was an all-round scholar. We postulate therefore that he deliberately chose not to take a dialectical approach.

3.1.5 General Principles and an Unimpeachable Axiom

Some twenty years later Grotius started to work on his Jus belli ac pacis, in which he adopted much of the earlier Jus Praedae. From the lawyers plea ‘to prove the Company had a right to take booty from the Portuguese, he was now seeking to develop an entirely new science of international law. If the former were the situation, then Grotius had the task of proving that a private individual could wage war and take prizes (…) whereas, if the latter were the case, then the right of the Republic to wage war against the Portuguese would have to be established.[121] Grotius is in need of customary law, as it were. ‘The most specific and unimpeachable axiom of the Law of Nations is called a primary rule or first principle, the spirit of which is self-evident and immutable‘ (emphasis added).[122] ‘The most frequent use of the notion of the law of nature by Grotius is what we should describe as general principles of law arrived at by way of a generalization and synthesis of the principal systems of jurisprudence’.[123]

3.1.6 Rhetoric

It is an essential scholastic debate if international law can ‘only be built through practice and experience (…) rather than be deduced a priori from immutable premises’.[124] In tautological reasoning self-evidency and immutability serve well as parts of an argumentum ad ignorantiam[125], especially useful for counsels whose goal it is to persuade. For this they omit arguments and facts that contradict and select the ones that fit. They never falsify, or enter into a dialectial approach to discourse, since this is not their aim nor part of their paradigm. They verify, that is: choose what fits best. With this, we place international law in the heart of rhetoric, operating on persuasion, and operating also on undeniability. ‘Epideictic oratory[126] has significance and importance for argumentation because it strengthens the disposition toward action by increasing adherence to the values it lauds’ (…). These values, moreover, are central to the persuasiveness of arguments in all rhetorical genres since the orator always attempts to establish a sense of communion centered around particular values.[127] ‘Legal argumentation is a specialized form of rhetoric which is principally concerned with interpretation – the interpretation of facts, of legal terms and concepts, of meaning and value, of what the law is meant to achieve, of what the parties to a case want the law to ‘mean’, or of what the parties to a transaction aim to achieve. Legal argument is essentially instrumental because it aims to have a practical effect, but by its nature it aims at securing the assent or adhesion of those to whom the argument is addressed rather than demonstrating the truth of the proposition or interpretation advanced’.[128]

Vitoria and Grotius, founding fathers of international law as we know it today, paved the way for international law as a rhetorical framework. Illocutionary force, and logical and lexical semantics are impediments. Rhetoric needs to get rid of them in order to flourish and become the most powerful of all linguistic tools. It is no wonder that on their conquering way, nations took up this particular arm.

3.2          Contemporary Legal Practice

The corpus of international law has grown exponentially, especially since World War II with the birth of international organizations such as the UN and the EU. We will discuss the rules of interpretation of treaty law to evaluate if the international legal practice actually limited or broadened its range of possibilities in meaning. We will then look at an international convention. We will consider if it is embedded in customary international law and is hence not governed by secondary rules[129], and if it handles its competence in a tautological manner.

3.2.1 Article 31 Vienna Convention on the Law of Treaties

Let us take a look then at the rules of interpretation of treaty law, codified in Article 31 VCLT:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the term of the treaty in their context and in the light of its object and purpose.

Interpretation in international law is ‘a process of assigning meaning to texts with the objective of establishing rights and obligations’.[130] Article 31 is ‘declaratory of the customary international law of treaty interpretation’.[131] In ‘all matters international, [one] always interpret[s] in accordance with the rules’ of the VCLT,[132] rules as codified in Article 31(3)(c):[133]

[T]here shall be taken into account, together with the context:

(c) any relevant rules of International Law applicable in the relations between the parties.[134]
One could argue, as has been done, that the ‘ascertainment of the meaning of the text should be leading’.[135] ‘Such an understanding of treaty interpretation, however, does not sit comfortably with the case law of the ICJ, especially in cases where the Court has arrived at what could be termed evolutionary[136] interpretations’.[137] The ICJ did follow this approach, referring to ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties’,[138] and many regard the search for that intention[139] ‘as the very aim of the process set out in Article 31 of the VCLT’.[140]

International law somehow is grounded on an ‘inherent objective intelligibility’ and is in the business of ‘textual mining – that is, extracting an idea or rule from the text which exists objectively’.[141] The text as such exists objectively, this being the whole point in positive law. In light of our remarks on the lack of illocutionary force, it comes as no surprise that in Article 31(3)(c) the context is wheeled in. Without this the interpreter would, in its most literal sense, be clueless. The tiny pleonasm here that discloses fields of interpretation to harvest meanings has not escaped our attention though: relevant rules. Rules that shall be taken into account are just as relevant as statehood is sovereign.

3.2.2 The Goodwin case: the intent of a hypothetical speaker

The Articles 31 to 33 VCLT form a ‘self-contained, complete analytical frame that has attempted to systematize and to structure the various possible methods for discerning the meaning of a legal text’.[142] There are ‘four sources of meaning identified in the interpretation literature:

1) The author of the object of interpretation

2) The object of interpretation itself

3) The interpreter

4) The society in which the interpretation occurs’.[143]
There are however interpretive ‘constraints resulting from the literal meaning of lexical terms’.[144] We would add that this is especially relevant as regards the terms used in the first three sources, whilst the last has quite different features. In the European Court of Human Rights interpretation of Article 8 ECHR[145] in the Goodwin case[146] e.g., the ‘Court interpreted the provision according to the intent of a hypothetical speaker: that of the international community’.[147] Stronger still, in the same case law we note that the Court unlocked sluices when it added to its interpretation: ‘the Society in Which the Interpretation Occurs’. In doing so, the Court opened the entrance to oceans of meaning.

When everything goes, anything goes.

3.2.3 ICSID and ius cogens

The ICSID is the International Centre for Settlement of Investment Disputes for legal dispute resolution, The ICSID is founded in self-evidency, it did attribute considerable power to itself:

Article 41: The Tribunal shall be the judge of its own competence.

Article 53(1): The award shall be binding on the parties and shall not be subject to any appeal.

Article 55: Nothing in Article 54 shall be construed as derogating from the law in force in any contracting state relating to immunity of that state or on any foreign state from execution.
This means that some other international law, notably the Arsiwa[148] is set aside. Chapter V in Arsiwa deals with precluding wrongfulness. In ICSID this same wrongfulness is not precluded. We note a similar operation between this section and other provisions:

Article 52(1): Either party may request annulment of the award on one or more of the following grounds:

(a) that the Tribunal was not properly constituted;

(b) that the Tribunal has manifestly exceeded its powers;

(c) that there was corruption on the part of a member of the Tribunal

(d) that there has been a serious departure from a fundamental rule of procedure.

Article 20:

The Centre, its property and assets shall enjoy immunity from all legal process.

Article 21:

The Chairman, members of the Administrative Council, (…) members of a Committee

(a) shall enjoy immunity from legal process with respect to acts performed by them in the exercise of their functions;

Article 41 together with Article 52(1)(b) make sure that annulment or appeal are impossible, which to be sure, is also remarked in Article 53. This is a tautology leading to an invincibility of almost dictatorial proportions. ICSID arbitration did well protecting the ‘equitable’ interests of Western investors, much less so for ‘capital importing states in Africa, Asia, and Latin America that historically were economically exploited by colonial powers and their investors’.[149] Some developing states ‘also decry the shift in the ‘regime theory’, by which powerful countries in the West have invoked customary law (emphasis added) and treaty defenses’[150] through customary rules of interpretation. ‘[The] ‘fair and equitable’ treatment of foreign investors is grounded in self-serving (emphasis added) norms directed at the market efficiency of capital flows’,[151] norms that Western states manufactured to their own benefit’.[152] The ICSID is a vehicle by which developed states have designed investment law, and ‘through it investor-state arbitration, into a self-serving ius cogens to suit themselves and their investors abroad’.[153]

  1. Fortress of Invincibility and the Backfire of its Linguistic Weaponry

The abundant use of linguistic weaponry as discussed here, prompts a caveat that some scholars have already brought to the fore: the danger of surpassing the boundaries, the end of the ambit. Maybe this is not just a danger, maybe the attacks have already begun. To consider this, we will discuss some of the contesters and their findings.

4.1          Third World Approaches to International Law (TWAIL)

The critical scholarly network known as Third World Approaches to International Law is ‘an embodiment of discourses to Eurocentricity’,[154] challenging mainstream international law scholars. The network is concerned with issues on global wealth and poverty and the analysis of issues of power and knowledge. Central is the critique of formalism, of rights and sovereignty’.[155] TWAIL scholars ‘are solidly united by a shared ethical commitment to the intellectual and practical struggle to expose (…) those features of the international legal system that help create or maintain the generally unequal, unfair, or unjust global order’.[156] The so called TWAILers ‘proceed from the assumption that it is not possible to isolate modern forms of domination such as governmentalism, from the older modes of domination’.[157] In their view, international law developed over the centuries ‘with a geographical bias (European), a religious-ethical inspiration (Christian), an economic motivation (mercantilist) and political aims (imperialist)’.[158] They are ‘wary of Western ideas of universality which have led to subjugation’.[159] Understandably so, since they argue that universality works mostly to the advantage of the powerful states: ‘It is one thing for Europeans and North Americans, whose states share a common philosophical and legal ancestry, to create a common political and cultural template to govern their societies. It is quite another to insist that their particular vision of society is the only permissible civilization which must now be imposed (emphasis added) on all human societies, particularly those outside Europe’.[160] Some of the scholars situate the issues on the language of law. They purport that ‘the language of civil and political rights mystifies power relations and enhances private rights’,[161] and is the language of oppression.[162] They have pointed to the ‘messiness’[163] of international law, it being transformative as well as regressive and a corpus full of contradictions. Stronger still, they state that the language of law plays ‘a significant role in legitimizing dominant ideas for its discourse tends to be associated with rationality, neutrality, objectivity and justice (…) and thus places meaning in the service of power’.[164] Here, the credibility of international law is surpassed.

4.2          New International Economic Order

As discussed in section 3, international lawyers sustained European claims on land outside the home country. Trading and waging war were declared universal principles and therefore self-evident. International law has a long-standing and complex relation to colonialism to this very day.

The ICSID, the International Centre for Settlement of Investment Disputes for legal dispute resolution, is a project of the decolonization process. It is founded by the World Bank in 1965:[165] a ‘concern among some developing states, most vividly expressed by President Correa of Ecuador, is that the ICSID was established by, and arguably in the interest of, wealthy countries and their investors abroad.’[166] This is not just a random wild accusation. International investment law ‘protects the property of transnational corporations from expropriation by developing states’.[167]

Meanwhile, upcoming states are keen to take over and use this legal system that apparently sustains power. With new ‘super-economic powers like China extending the scope of dispute resolution by treaty beyond expropriation, ICSID arbitrators are likely to construe those treaties purposively, consistent with China’s treaty purpose. China is also likely to follow the direction of the Supreme People’s Court[168] that is perceived (…) to be protectionist.[169] The feared result is another New International Economic Order in which economically powerful states, now including China and possibly India, replicate the empowerment[170] previously limited to the United States and Western European states’.[171]

In ICSID dispute settlement, the linguistic boundaries show: arbitrators reach different determinations in comparable cases.[172] Six investor claims against the Republic of Argentina illustrate the inconsistent methods of construing international investment law. Three of the cases, Sempra, Enron and CMS[173], were decided by tribunals that (…) employed different methods of interpretation and they reached different conclusions. Specifically the tribunals in CMS and Sempra rejected Argentina’s pleas under both treaty and customary law.[174] This is what happens when one opens the sluices of interpretation to oceans of meaning: like the Sorcerer’s Apprentice who cut a broom in two, that then became four, then eight, sixteen … words do the same: they generate floods of extra words. Until at last this exponential growth leads to dispute settlements with highly different outcomes. Here, the meaning of the words of international law is surpassed.

4.3          Critical Legal Studies

The protection of the interests of wealthy nations is not just put forward by developing states. It had not escaped the attention of British and American scholars either. The Critical Legal Studies movement, successors to the Legal Realists in the first half of the 20th century, became known as a leftist movement in law in the seventies, initially working on Marxist theory and unveiling the injustice the law generates. Moreover, they are criticizing the dominant legal theory of formalism and objectivism, as well as the legal practice, merely comprising the instrumental use of law. They contested the ‘inherent objective intelligibility’ mentioned in section 3.2.1, pointing to ‘the shortcomings of formalist interpretive techniques, centered on adherence to objectivity and textualism’.[175] They note the ‘analogy-mongering’ of law and are convinced this has to stop, because ‘since everything can be defended, nothing can’.[176] As we mentioned before: when everything goes, anything goes. The method of critical social thought as developed by the scholars of the CLS movement, sought to ‘understand society as made and imagined rather than as merely given in a self-generating process that would unfold independently of the will and the imagination and that would condemn people constantly to reenact a drama they were unable to stop or even to understand’.[177] They also take a stand on the claim to knowledge. Looking at the fact-value distinction, they assert that ‘debates about skepticism turn out to be disagreements over the right of one mode of discourse (…) to make exceptions to criteria of validity that prevail in another area of thought’.[178] They contest the idea that ‘one normative postulate must rest upon another, [which] quickly leads to the conclusion that all must rest upon unsupported an assertion once the chain of normative postulates runs out. (…)’[179] According to the movement, ‘a successful theoretical conception [in different areas of law] would be one that made intelligible each of the partial countervisions while helping resolve conflicts among them. (…) The aim is not closure and completeness but continued criticism and self-revision, not finality but corrigibility’.[180] We believe that at this point CLS takes a dialectical approach, for is it not a fundamental dialectical insight that philosophical controversies of this sort seem ‘to be intractable because the criteria to gauge the truth-value of propositions are tacitly assumed instead of being made explicit’.[181] Here, the non-falsifiability of international law is surpassed.

4.4          The Pragma-Dialectical Approach to International Law

In our view, the dialectics could be taken some steps further. We will therefore turn to pragma-dialectics, because in this approach, argumentation, a complex illocutionary act, forms part of a reasonable argumentative discourse aimed at resolving differences of opinion. ‘The critical-rationalist philosophy of reasonableness is given shape in an ideal model of a critical discussion. (…) It specifies the various stages that are to be distinguished in the resolution process’.[182]

The pragma-dialectical approach aims to systematically overcome ‘both the limitations of the non-empirical regimentation exemplified in normative modern logic and the limitations of the noncritical explanation exemplified in contemporary descriptive linguistics’.[183] It enhances a philosophical ideal of reasonableness and a theoretical model for acceptable argumentative discourse. The normative and descriptive dimensions are linked together into an instrument of diagnosis and norm prescribing rules.[184] The pragma-dialectical approach has an in-built critical function. It consists of ‘constant evaluation of the arguments, which should be free from logical and pragmatic inconsistencies. The argumentation should be or can be made logically valid and it should be checked for fallacies’.[185] The pragma-dialectical approach offers “Rules for Critical Discussion”. The Rules are meant to establish argumentative resolutions of disputes between parties. We consider pragma-dialectics as a theory of science, since it formulates demarcation criteria of science in its Rules for Critical Discussion. ‘The logical norm of validity gets its proper (and limited) place’,[186] in the stages of argumentation, in which all fallacies are put in place and can be recognized as such. Pragma-dialectics bridge the gap between dialectic and rhetoric by the concept of ‘strategic maneuvering’, a reconciliation of rhetorical effectiveness whilst maintaining dialectical standards. Without wanting to confuse terms, one could view the rules as higher order rules to which parties do or do not adhere. ‘Viewed dialectically, the parties are under no obligation to provide a reason for not admitting a proposition as a common starting point. Viewed rhetorically however, it may be better if they do: it is generally regarded of no use to start a discussion with people who refuse to commit themselves to any common (or specific) starting point’.[187] When a party is only after persuasion of the opponent, the strategic maneuvering gets derailed. ‘Such derailments occur when a rule for critical discussion has been violated in the discourse. [R]ealising the rhetorical aim has gained the upper hand at the expense of achieving the dialectical objective. Because derailments of strategic maneuvering always involve a violation of a rule for critical discussion they are on a par with the wrong moves in argumentative discourse designated as fallacies. Viewed from this perspective, fallacies are violations of critical discussion rules’.[188] Rule #6, the ‘starting point rule’, e.g. states that ‘A party may not falsely present a premise as an accepted starting point’.[189] Rule #8 is the ‘validity rule’, reading that a party may only use arguments that are logically valid or capable of being made logically valid by making explicit one or more unexpressed premises. We can discern now that nor Vitoria nor Grotius did comply with these rules, this being the reason we qualified their works as ‘fallacious reasoning’ in section 3. Rule #10, the ‘usage rule’ reads that a party must not use formulations that are insufficiently clear or confusingly ambiguous. In international law, this is probably the most violated Rule for Critical Discussion. This also shows that pragma-dialectics, although rooted in discourse analysis, is also applicable to (the making of) treaty texts.

The pragma-dialectical approach opens the possibilities for continued criticism and self-revision thereby shaking off the old feathers of indisputability. It closes the sluices to oceans of meaning, solving many interpretation issues. By diagnosing and invalidating fallacies, ambiguity and unsupported premises, it adheres to scientific criteria. Here, the fallacious character of international law is surpassed.

  1. Conclusion

International law is indisputable. This indisputability rests on the obscurity of the meaning of the texts that make out the corpus of international law. International law is designed as an invincible fortress. The weaponry used is deletion of illocutions, the use of tautologies, broad interpretation and endless possibilities of meaning. It is neither falsifiable nor verifiable, which clearly indicates a choice for rhetoric. This choice surely contributed to the ambit and level of invincibility, an invincibility avidly utilized by powerful states.

We have confined our justification of putting international law to the test of linguistics, to the assertion that ‘in fact’ it is a linguistic exercise at its core. It has a cumbersome relation to pragma-linguistics and dialectics, and we did not find many relevant traces of illocutionary forces. It did not pass the propositional logic test. Overall, the corpus denies the true and false notions of propositional logic.

Tautologies in international law apparently operate at the level of a sentence, such as in UNCLOS, on the level of one provision, between the subsets of a provision such as in the Montevideo criteria, as well as between Treaties and other parts of international law such as Article 38(1)(b), ICSID and Arsiwa. Or ever so often on different planes, such as the Convention against Torture: it can be set aside when arising from lawful sanctions on the one hand, whilst on the other hand, as part of jus cogens, as set out in article 53 VCLT, it is one of the norms that cannot ever be set aside.

The fortress of international law is under attack and shows signs of perish in every possible way, perish that weaken the construction. In our days the fortress should be deconstructed and disengaged from its fallacies. It then can be rebuilt with the Rules of Critical Discussion provided for by pragma-dialectics. It will resurrect on the strength of the dialectical approach, which will render it fit to the modern balance of power. The world is yearning for this new Fortress of Invincibility.

The era of the Fortress of Invincibility as we know it today has to come to an end.

 

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[1] Aristotle, Topics, 162b 34. John Woods and Douglas Walton, Fallacies: Selected Papers 1972-1982. Dordrecht: Foris 1989.

[2] K.R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge, London: Routledge and Kegan Paul 1963.

[3] For doubt about the identity of international law see, among many others, M. Koskenniemi, ‘Between Commitment and Cynism: Outline for a Theory of International Law as Practice’. United Nations Publication 1999.

[4] F.H. van Eemeren (ed), Reasonableness and Effectiveness in Argumentative Discourse. Fifty Contributions to the Development of Pragma-Dialectics, Houten: Springer 2015.

[5] J. Austin, How To Do Things With Words, OUP 1962.

[6] And its scientific successor ‘pragma-linguistics’.

[7] J. Searle, Speech Acts. An Essay in the Philosophy of Language, CUP 1969.

[8] J. Austin, op. cit. supra note 5.

[9] Directives range from begging to asking, demanding or threatening: they are always aimed at or directed at asking the other party to do something.

[10] J. d’Aspremont, ‘The Multidimensional Process of Interpretation. Content-Determination and Law-Ascertainment Distinguished’, in: A. Bianchi, D. Peat & M. Windsor (eds), Interpretation in International Law, OUP 2015, p. 114.

[11] J.R. Searle, ‘A Taxonomy of Illocutionary Acts’, in: K. Gunderson (ed), Language, Mind, and Knowledge, Minnesota Studies in the Philosophy of Science, Vol. VII, University of Minnesota Press, 1975, p. 344-69.

[12] C. Perelman and L. Olbregts-Tyteca. The New Rhetoric: a treatise on argumentation. (J. Wilkinson & P. Weaver, tr.). Notre Dame: University of Notre Dame Press, 1969.

[13] Lewis Carroll, Through the Looking Glass, and What Alice Found There, Ch. 6: Humpty Dumpty, 1871.

[14] Alfred Tarski’s 1933 ‘The Concept of Truth in Formalized Languages’ is generally regarded as foundational. In it he makes the analysis of a true sentence.

[15] I. Venzke, ‘Contemporary Theories and International Law-making’, in: C. Bröhlmann & Y. Radi (eds), Research Handbook On The Theory And Practice Of International Law-making, Elgar 2014, p. 68.

[16] Notably Popper, op. cit. supra note 2.

[17] G. Simpson, ‘Something to do with States’, in: A. Orford & F. Hoffmann, The Oxford Handbook of International Legal Theory 2016, Ch. 28, p. 569.

[18] ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ Rep 14 (Merits) 1986.

[19] J.R. Crawford, ‘Sovereignty as a Legal Value’, in: J. Crawford & M. Koskenniemi (eds), The Cambridge Companion to International Law, CUP 2012, p. 117-33.

[20] D.A. Doss, W.H. Glover et al., The Foundations of Communication in Criminal Justice Systems, Boca Ratton, London, New York: CRC Press 2015, p. 67.

[21] Aristotle, Prior Analytics II, Part XVI.

[22] I. Kant, Handbuch zu Vorlesungen über die Logik, Felix Meiner Verlag1800/1997, para. 88.

[23] Albeit some fallacies are not arguments in the classical sense of comprising (two) premises and one conclusion.

[24] C. Hamblin, Fallacies, London: Methuen 1970, p. 12.

[25] C. Tindale, Fallacies and Argument Appraisal, CUP 2007, p. 2.

[26] Aristotle, Methaphysics VII, 17, London: Penguin Classics 2004.

[27] When the formula is always true regardless of the valuation used for the propositional variables.

[28] L.T.F. Gamut, Logic, Language and Meaning. Volume 1: Introduction to Logic, Chicago and London: The University of Chicago Press 1991, p. 28-65, p. 195.

[29] Id. at 28.

[30] Take e.g. the assertions ‘Plastic is environmentally unfriendly’ and ‘Plastic is environmentally friendly’. In this form they cannot both be true. Extension of the compositional parts however, such as ‘Plastic is environmentally unfriendly when thrown into the sea’ and ‘Plastic is environmentally friendly when used as fuel in an incinerator’ can change that. Confirmation of the latter part produces the valid A=B ∧ B=C ⇒ A=C.

[31] P. Allott, ‘Interpretation – An Exact Art’, in: A. Bianchi, D. Peat & M. Windsor (eds), Interpretation in International Law, OUP 2015, p. 373-393, p. 378.

[32] UNHRC, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1(1).

[33] Montevideo Convention on the Rights and Duties of State. Seventh International Conference of American States, 1933, Article 1.

[34] B. Simma, ‘Reciprocity’, Max Planck Encyclopedia of Public International Law, 2008.

[35] Tu quoque (‘you too’) and do ut des (‘I give (so) that you might give’) are both judicial concepts in (ancient Roman) contract law, expressing (some form of) reciprocity.

[36] ICTY Trial Chamber, The Prosecutor v Zoran Kupreskić et al., Judgment, 14 January 2000, Case No IT-95-16-T, para. 517.

[37] D. Fleck (ed), The Handbook of International Humanitarian Law, 3d edition, OUP 2014, p. 650: ‘In contrast to Art. 2 HC IV (1907), which states: “The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.”

[38] Fleck, op. cit. supra note 37, at 12, #102 and footnotes 71 and 72.

[39] Allott, 2015, op. cit. supra note 31.

[40] A. Pellet, ‘Article 38’, in: A. Zimmermann, C. Tomuschat, K. Oellers-Frahm & C. Tams (eds), The Statute of the International Court of Justice: A Commentary, OUP 2006, p. 731.

[41] H.G. Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’, Iowa Law Review, Vol 93, 2007, p.1057.

[42] J. d’Aspremont, J. ‘The Multidimensional Process of Interpretation. Content-Determination and Law-Ascertainment Distinguished’, in: A. Bianchi, D. Peat & M. Windsor (eds), Interpretation in International Law, OUP 2015.

[43] D.B. Hollis, ‘The Existential Function of Interpretation in International Law’. In: A. Bianchi, D. Peat & M Windsor (eds), Interpretation in International Law, 2015, pp. 78-110., at 97.

[44] WTO Analytical Index: GATT 1994 https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_07_e.htm

[45] US – Gambling, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Dispute Settlement, 20 April 2005.

[46] Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161 & 169/AB/R, 11 December 2000, paras 159-160.

[47] The General Agreement on Tariffs and Trade (1947).

[48] A.A. d’Amato, Concept of Custom in International Law, Cornell University Press 1971, p. 12.

[49] ICJ, Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), ICJ Reports, 3 June 1985, pp. 13, 29.

[50] Shaw, International Law, CUP 2014, p. 53.

[51] A. Nollkaemper, Kern van het internationaal publiekrecht, Den Haag: Boom Juridische Uitgevers 2011, p. 200.

[52] ICTY, Prosecutor v. Furundzija, Case No. IT-95-17, Judgment, Trial Chamber, 10 December 1998, para. 138.

[53] B. Russell, ‘On Denoting’, Mind 1905.

[54] A. Nollkaemper 2011, op.cit. supra note 51, at 218-221.

[55] PCIJ, Chorzow Factory (Germany v. Poland), Ser. A, No. 17, 1928, para. 29.

[56] ICTY, Prosecutor v. Kupreskic et al., Case No. IT-95-16, Judgment, Trial Chamber, 14 January 2000, para. 591.

[57] UN Doc. S/25704 (1993), para. 58. [It] ‘is a question of finding in the private law institutions indications of legal policy and principles appropiate to the solution of the international problem at hand. It is not the concrete manifestation of a principle in different national systems, but the general concept of law underlying them’. Separate Opinion of Lord McNair in ICJ, South-West Africa Case, Advisory Opinion, ICJ Reports 1950, para. 148.

[58] ICJ, Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, para. 22.

[59] M. Akehurst, Custom as a Source, p. 21. Case Paquete Habana, 175 US 677, 1900. Lotus Case, PCJI, Series A, No. 10, 1927, para. 18.

[60] ICJ, North Sea Continental Shelf (Germany v. Denmark; Germany v. The Netherlands), ICJ Reports 1969, para. 42, 73-74, 78. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ Reports 1986, para. 186. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 70-73. ICTY, Prosecutor v. Furundzija, Case No. IT-95-17, Judgment, Trial Chamber, 10 December 1998, para. 137-138. ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Judgment, Appeals Chamber, 15 July 1999, para. 194. Arbitral Tribunal, Pope & Talbot v. Canada, Award in respect of damages, 31 May 2002, para. 62.

[61] M. Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument, CUP 2005, p. 411.

[62] W. Friedmann, The Changing Structure of International Law, New York, 1964, pp. 121-3, and I. De Lupis, The Concept of International Law, Aldershot 1987, pp. 112-116.

[63] C. Perelman, Justice, Law and Argument: Essays on Moral and Legal Reasoning. Synthese Library Vol. 142, Dordrecht: D. Reidel Publishing Company 1980, p. 137.

[64] T. Viehweg, Topics and the Law: A Contribution to Basic Research in Law. Tr. by W.C. Durham P. Lang, 1973/1993, p. 77-8.

[65] Maxim of Quantity: give all the necessary information but not more nor less than needed. Grice, H.P., ‘Logic and Conversation’, in: Cole, P. and J.L. Morgan (eds). Speech Acts. New York Academic Press, 1975, pp. 41-58.

[66] Gamut, op. cit. supra note 28, at 211.

[67] G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice. Treaty Interpretation and Other Treaty Points’. British Yearbook of International Law, 1957, 203, 212.

[68] I. Venzke 2014, op. cit. supra note 15, at 5.

[69] H. Waldock, Yearbook of the International Law Commission. Third Report on the Law of Treaties, Vol. II, 1964 5, 56.

[70] I. Venzke, How Interpretation Makes International Law. On Semantic Change and Normative Twists, OUP 2012, p. 50.

[71] I. Venzke, ‘The Role of International Courts as Interpreters and Developers of the Law: Working out the Jurisgenerative Practice of Interpretation’, Loyola of Los Angeles International and Comparative Law Review, 2012, 34, p. 119-51.

[72] WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1988, para 114.

[73] Predecessor of the ICJ. The Permanent Court, part of the League of Nations, was in session between 1922 and 1946. Its jurisprudence on interpretation remained an important source for the ICJ.

[74] Permanent Court, Interpretation of the Treaty of Lausanne, Art. 3, para 2. PCIJ Rep Series B No 12, 19, 1925.

[75] I. Venzke 2012, op. cit. supra note 71.

[76] d’Aspremont 2015, op. cit. supra note 10, at 113.

[77] Allott, 2015, op. cit. supra note 31, at 374. The term is apparently used in many legal proceedings, albeit not in the sense of our former quote.

[78] Lewis Carroll, Through the Looking-Glass, 1871: “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

[79] As Venzke observes in Article 31 VCLT ‘Whatever reasons or motivations underlie a suggested interpretation, the interpretation must be couched in the grammar of the rules of interpretation’. I. Venzke, op. cit supra note 71, at 47-50.

[80] ‘The rules of interpretation relate to the process of treaty interpretation in the way that a deck relates to a game of cards’. Andrea Bianchi, ‘The Game of Interpretation in Law: The Players, the Cards, and Why the Game is Worth the Candle’. In: A. Bianchi, D. Peat & M Windsor (eds), Interpretation in International Law, 2015, pp. 34-60.

[81] E. Bjorge, ‘The Vienna Rules, Evolutionary Interpretation, and the Intention of the Parties’. In: A. Bianchi, D. Peat & M Windsor (eds), Interpretation in International Law, 2015, pp. 204.

[82] Even if one limits this particular phrase to the General Assembly of the United Nations, which is the usual reference to the ‘international community’, it still means oceans of minutes and resolutions, from the voices of all the member states to multiply them with.

[83] J. d’Aspremont, Epistemic Forces in International Law. Foundational Doctrines and Techniques of International Legal Argumentation. Cheltenham: Edward Elgar Publishers, 2015, p. 223.

[84] d’Aspremont 2015 op. cit. supra note 10, at 117.

[85] Ibid. at 124-25.

[86] Ibid. at 129.

[87] S. Levinson, Pragmatics, CUP 1983.

[88] H. Putnam, ‘The Meaning of ‘Meaning’. In: Yemima Ben-Menahem (ed), Externalism in Historical Context, CUP 1975.

[89] d’Aspremont 2015, op. cit supra note 10, at 115.

[90] Costa/ENEL, European Court of Justice, 1964, and especially Simmenthal II, ECJ 1978.

[91] A. Reppy, The Grotian Doctrine of the Freedom of the Seas Reappraised, 19 Fordham L. Rev. 243, 1950, p. 284. Available at: http://ir.lawnet.fordham.edu/flr/vol19/iss3/1.

[92] G. van Nifterik & J.E. Nijman, Introduction: Mare Liberum Revisited, Grotiana Vol. 30 Issue 1, 2009, p. 11.

[93] D. Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law Journal 27:1, 1986.

[94] J.B. Scott, The Spanish Origin of International Law. Francisco de Vitoria and his Law of Nations. Oxford: Clarendon Press, 1934.

[95] As well as that of the Italian Albericus Gentili (1552-1608), ‘from whom many authorities assert, he borrowed much’. Reppy, op. cit. supra note 91, at 267.

[96] Reppy op. cit. supra note 91 at 263.

[97] F. de Vitoria, De Indis et De Jure Belli (part of the Relectiones Theologicae), 1532. J. Lawrence & A. Pagdan, (eds.), Francisco de Vitoria: Political Writings, CUP 1991. Washington DC: The Carnegie Institute 1557/1917.

[98] H. Grotius, The Freedom of the Seas Or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade, 1609, London: FB&c Ltd Forgotten Books 2015.

[99] Vitoria, para 382, at. 151.

[100] A. Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’. Social & Legal Studies. London/Thousand Oaks: Sage Publications 1996 Vol. 5(3), p. 325.

[101] Bederman, D.J., International Law in Antiquity, CUP 2004, p. 85.

[102] Anghie op. cit. supra note 100, at 325.

[103] Id, at 326.

[104] Id. at 327.

[105] Vitoria, para 322, at 123.

[106] Anghie op. cit. supra note 100, at 326.

[107] J. Hintikka, Socratic Epistemology: Explorations of Knowledge-Seeking by Questioning, CUP 2007.

[108] If you block the way (p), I will consider that as waging war (q). When you wage war (q), I am entitled to defend myself (r). You block the way, so I defend myself: p → q ∧ q → r ⇒ p = r. But p is false. It is an unsubstantiated premise.

[109] G. Lakoff, The Political Mind, NY: Viking, Penguin Books 2008.

[110] Anghie op. cit. supra note 100, at 332.

[111] P. Borschberg, ‘Hugo Grotius’ Theory of Trans-Oceanic Trade Regulation’. Revisiting Mare Liberum (1609), Itinerario 29, 2005, pp. 31-53.

[112] G. van Nifterik & J.E. Nijman, op. cit. supra note 92, at 6.

[113] G. Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel, Accomplices of European Colonialism and Exploitation or True Cosmopolitans?’ Journal of the History of International Law, 2008-10:2, p. 181-209.

[114] C. Tindale 2007, op. cit. supra note 25, at 73.

[115] Reppy op. cit. supra note 91, at 257.

[116] Fruin, R., An Unpublished Work of Hugo Grotius, in: 5 Bibliotheca Visseriana 3, 8-10, 1925.

[117] Minutes of the Admiralty of Amsterdam, 9th September, 1604. We consider minutes, or verdicts of the court or unpublished letters as a form of primary sources, highly contributing to the reliability of a viewpoint on a historical text. References to other legal scholars tend to disclose the reception esthetics of the work over time.

[118] Reppy op. cit. supra note 91, at 258.

[119] H. Grotius, Commentary on the Law of Prize and Booty. Introduction by M.J. van Ittersum, 2006. http://oll.libertyfund.org/titles/1718.

[120] Parry, J.T., ‘What is the Grotian Tradition in International Law?, 35 Journal of International Law, 2014, p. 374. http://scholarship.law.upenn.edu/jil/vol35/iss2/1.

[121] H. Grotius, The Freedom of the Seas or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade. Forgotten Books: Classic Reprint Series, 2005. Washington DC: Carnegie Endowment for International Peace, 1916.

[122] J.B. Scott, The Spanish Origin of International Law. Francisco de Vitoria and his Law of Nations. Oxford: Clarendon Press, 1934.

[123] Lauterpacht, H., The Grotian Tradition in International Law, 23 Brit. Ybk of International Law 1, 1946, p. 9.

[124] Panizza, D., ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate between ‘Theological’ and ‘Humanist’ Perspectives from Vitoria to Grotius’. IILJ/Working Paper 2005/15. History and Theory of International Law Series, 2005, p. 6.

[125] It asserts that a proposition is true because it has not yet been proved false, or vice versa.

[126] Epideictic (or ceremonial rhetoric) according to Aristotle was not relevant, indifferent as it is to facts.

[127] Perelman and Olbregts-Tyteca 1969, op. cit. supra note 66, at 50-51.

[128] Scobbie, I., ‘Rhetoric, Persuasion, and Interpretation in International Law’. In: A. Bianchi, D. Peat & M Windsor (eds), Interpretation in International Law, 2015, p. 64.

[129] H.L.A. Hart, The Concept of Law, OUP, 1961/2012.

[130] M. Herdegen, ‘Interpretation in International Law’ in: Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law OUP 2013.

[131] R. Gardiner, Treaty Interpretation. OUP 2008, p. 15.

[132] J. Klabbers, ‘Virtuous Interpretation’. In: M. Fitzmaurice, O. Elias & P. Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On. Martinus Nijhoff Publishers 2010 17, 24.

[133] ILC Report, May 2004. http://legal.un.org/ilc/sessions/56/

[134] See also Art. 2(1) VCLT, Use of Terms. Convention on the Law of Treaties between States and International Organizations.

[135] J.M Sorel & V. Boré Eveno, ‘Article 31’, in: O. Corten & P. Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary. OUP 2011, p. 804.

[136] By ‘evolutionary interpretation’ Bjorge means situations in which an international court concludes that a treaty term is capable of evolving, and not fixed once and for all, so that allowance is made for developments in IL. Account is taken of the meaning acquired by the treaty terms when the treaty is applied. Op cit. 2015, p. 191.

[137] E. Bjorge, The Evolutionary Interpretation of Treaties. OUP 2014, p. 56-141.

[138] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Rep 1971 16, [53].

[139] The concept of the ‘intention of the parties’ is ‘determined through the application of the various means of interpretation which are recognized in artt. 31 and 32’. Report of the International Law Commission on the Work of Its Sixty-Fifth Session A/68/10 27, 1966 ILC Ybk II 218-19.

[140] Bjorge, op. cit. supra note 81, at 190.

[141] J. d’Aspremont, ‘Formalism versus Flexibility in the Law of Treaties’, in: C. Tams, A. Tzanakopoulos and A. Zimmermann (eds), Research Handbook on the Law of Treaties, Edward Elgar, 2014, p. 277. Amsterdam Law School Research Paper No. 2013-78.

[142] G. Hernández, ‘Interpretation’ in: Jörg Kammerhofer and Jean d’Aspremont (eds), International Legal Positivism in a Post-Modern World CUP 2014, p. 317, 326.

[143] S. Fish, ‘Intention is All There Is: A Critical Analysis of Aharon Barak’s Purposive Interpretation in Law’ (2008) 29(3) Cardozo Law Review 1109, 1116.

[144] U. Eco, The Limits of Interpretation, University of Indiana Press, 1994, pp. 5-6.

[145] European Convention on Human Rights, Article 8 provides a right to respect for one’s private and family life, his home and his correspondence.

[146] Christine Goodwin v. UK (2002) 35 EHRR 447, [90], [93].

[147] D. Peat & M. Windsor, ‘Playing the Game of Interpretation. On Meaning and Metaphor in International Law’, in: A. Bianchi, D. Peat & M. Windsor (eds) Interpretation in International Law, OUP 2015.

[148] Articles on Responsibility of States for Internationally Wrongful Acts, notably Ch. V ‘Precluding Wrongfulness’.

[149] M. Sornarajah, The International Law on Foreign Investment, CUP, 2d ed, 2004, pp. 142-45.

[150] A.K. Bjorklund, ‘Emergency Exceptions: State of Necessity and Force Majeure’. In: P. Muchlinski et al. (eds), The Oxford Handboook of International Investment Law, 2008, p. 473.

[151] M. Hirsch, ‘The Interaction between International Investment Law and Human Rights Treaties: A Sociological Perspective’. In: T. Broude & Y. Shany (eds), Multi-sourced Equivalent Norms in International Law, 2011, pp. 211-14.

[152] L.E. Trakman, ‘The ICSID Under Siege’, Cornell Int’l LJ 2012, p. 608.

[153] Sornarajah op. cit. supra note 153..

[154] J.T. Gathii, TWAIL: ‘A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’, Loyola University Chicago, School of Law: 3(1) Trade, Law and Development 26, 2011, p. 28.

[155] Mickelson, K., ‘Taking Stock of TWAIL Histories’, 10 International Community Law Review, 2008.

[156] O.C. Okafor, Newness, Imperialism, and International Legal Reform in our Time: A TWAIL Perspective, 43 Osgoode Hall Law Journal 171, 176, 2005.

[157] Gathii, J.T., ‘Imperialism, Colonialism and International Law, 54 Buffalo Law Review 1013, 2007.

[158] M. Bedjaoui, ‘Poverty of the International Order’, in: Richard Falk et al. (eds), International Law: A Contemporary Perspective 1985, p. 153-54.

[159] Okafor, op.cit. supra note 160 at 179.

[160] M. Mutua, ‘Savages, Victims and Saviors: the Metaphore of Human Rights’, Harvard International Law Journal 2001, Vol. 42, p. 216.

[161] B.S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, International Community Law Review 8, 2006, pp. 3-27.

[162] Anghie, A. & Chimni, B.S., ‘TWAIL and Individual Responsibility in Internal Conflicts’, 2 Chinese Journal of International Law 77, 2003.

[163] Anghie & Chimni, op. cit. supra note 166 at 43.

[164] Chimni, op. cit. supra note 166, at 17.

[165] 1965 is the height of the decolonization period. Between 1960 and 1968 some 50 former colonies became independent.

[166] ICSID in Crisis: Straight-Jacket or Investment Protection? Brettonwoods Project.

[167] McLachlan, ‘Investment Treaties and General International Law’, 57 Int’l & Comp. L.Q., 2008 , p. 394.

[168] L.C. Wolff, ‘Pathological Foreign Investment Projects in China: Patchwork or Trendsetting by the Supreme People’s Court?’ 44, International Law 1001, 2010.

[169] Ekran Berhad v People’s Republic of China, ICSID case No. ARB/11/15, 24 May 2011.

[170] Wei Shen, ‘Beyond the Scope of ‘Investor’ and ‘Investment’: Who Can Make an Arbitration Claim under a Chinese BIT? – Some implications from a recent ICSID-case’. 6, Asian International Arbitration Journal, 2010, p. 164.

[171] Trakman, 2012 op. cit. supra note 155, at 644.

[172] Opinio Juris, 2 August 2012) http://opiniojuris.org/2012/08/02/why-the-failure-to-provide-saif-with-due-process-is-relevant-to-libyas-admissibility-challenge/.

[173] Sempra Energy Int’l v Argentine Republic, ICSID Case No. ARB/02/16, Award, September 28, 2007. Enron Corp. v. Argentine Republic, ICSID Case No. ARB/01/3, Award, May 22, 2007. CMS Gas Transmission Co. v. Argentine Republic, ICSID Case Nor. ARB/01/08, Award May 12, 2005 44 I.L.M. 1205.

[174] Trakman, 2012 op. cit. supra note 155, at 642.

[175] In: David Kennedy, ‘The Turn to Interpretation’ (1985) 58 Southern California Law Review 251; Peter Goodrich, ‘Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language’ (1984) 4(1) Oxford Journal of Legal Studies 88.

[176] A remark attributed to Frederick the Great.

[177] R.M. Unger, The Critical Legal Studies Movement, Harvard University Press, 1983/1986, p. 108.

[178] Id. at 96.

[179] Unger, op. cit. supra note 169.

[180] Unger, op. cit. supra note 82.

[181] R. Crawshay-Williams, Methods and Criteria of Reasoning: An Inquiry Into the Structure of Controversy. Routledge, 2001.

[182] Eemeren, F.H. van & R. Grootendorst, ‘The Pragma-Dialectical Approach to Fallacies’, in: H.V. Hansen & R. Pinto (eds), Fallacies: Classical and Contemporary Reading. Penn State University Press, 1995, pp. 130-145.

[183] Eemeren & Grootendorst, op. cit. supra note 186 at 130.

[184] Eemeren, van op.cit. supra note 179 at 131.

[185] F.H. van Eemeren & P. Houtlosser, ‘Strategic Maneuvering: A synthetic recapitulation’. Argumentation, 20, 2006, p. 381-392.

[186] Eemeren, van, Ibid.

[187] F.H. van Eemeren & P. Houtlosser, ‘Strategic Maneuvering: A synthetic recapitulation’. Argumentation, 20, 2006, p. 389.

[188] Id. at 387.

[189] F.H. van Eemeren, R. Grootendorst & A.F. Snoeck Henkemans, Argumentation: Analysis, evaluation, presentation. Mahwah, NJ: Lawrence Erlbaum Ass., 2002, p. 182-183.