Achievements and Challenges for the Systemic Vision of International Law

Obviously, the concept of international law as a coherent whole has had its marked effect in shaping outcomes in the international arena. A systemic vision that constructs and maintains an international rule of law promises all states - weak and strong alike - equal formal status to take part in the lawmaking process, and, even more importantly, equal protection via an impartial decision maker that resorts to a coherent and consistent interpretation and application of the law. By creating general principles, normative hierarchy, and by privileging consistency and precedent, judges provide weaker states with claims that they can employ in a variety of adjudicative bodies. The impact of unequal economic or military power between states is more apparent during treaty negotiations than when courts are called upon to interpret and enforce the treaty. This system of norms increases the likelihood that a victory that they achieve in a particular venue will have broad ranging implications. […]

But the systemic vision of the law does not eliminate discord. There can be competing perceptions of what constitutes the legal system. One well-known debate relates to the possible existence of so-called “self-contained regimes,” such as the European Union and the World Trade Organization, as discrete systems immune to the general normative order. Another famous - and some would say arid - debate concerns the relationships between the international legal system and the national system in countries that follow the dualist approach. In these debates - debates that often conceal competing policy considerations - disagreements can lead to tensions. This has been demonstrated, for example, by the sometimes tense relations between the European Court of Justice (ECJ) and the Bundesverfassungsgericht (BVerfG). Both courts viewed the same legal system from different angles, and also viewed themselves as the authoritative interpreters of that system. Their viewpoints clashed. Juliane Kokott notes that the BVerfG’s approach was not devoid of political undertones. The BVerfG’s vision of the European legal system was a way to promote national interests in the European political sphere.

II. Answer the questions.

1. What is the systemic approach based on?

2. What is the traditional approach of English law?

3. What are the peculiarities of German approach?

4. What allows judges considerable discretion to make new law?

5. What is the subject of debate in countries that follow the dualist approach?

6. Why do governments tend to prefer rules on treaty interpretation that look back to the historical intention of the negotiators?

7. How does the vision of international law as a legal system rather than a mix of discrete treaties help judges?

II. Complete the following sentences using the required information from the text above.

a) The concept of international law as a ________ whole has had its marked effect in shaping ___________ in the international arena.

b) The systemic vision organizes the diverse types of ___________ between states.

c) The impact of ___________ economic or ____________ power between states is more apparent during treaty negotiations than when courts are called upon to interpret and enforce the treaty.

d) If a treaty establishes institutions, the courts will bolster those institutions, ___________ their authority __________ and _________.

e) The recent International Law Commission report on ___________, with its suggestion that no international undertaking is beyond the reach of the Vienna Convention on the Law of Treaties, and the increasing resort by international __________ and ____________ courts to the concepts of ___________ and __________ obligations are evidence of the durability of this approach.