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GENERAL PRINCIPLES AND THE COHERENCE OF

INTERNATIONAL LAW

PRINCIPES GENERAUX ET COHERENCE DU DROIT INTERNATIONAL

Organised under the auspices of the University of Bologna – School of Law, KU Leuven – Centre for Global Governance Studies, University of Oslo – Faculty of Law and Centre Universitaire de Norvège à Paris. Organising Committee Attila Tanzi, Jan Wouters, Mads Andenæs, Giuseppe Bianco, Ludovica Chiussi and Johann Ruben Leiss.

What role do general principles of law play in today’s international legal order? Can these general principles contribute – and if so, how and to what extent – to ensuring the coherence of international law, given the rapid developments in the many sub–fields of the latter? What interactions are there between general principles at international, regional, and national levels? The seminar will address the contribution of general principles to the coherence of international law. It will bring together several high–level experts from academia and practice to discuss: (i) the relationship between general principles and the other sources of international law; (ii) the interactions between general principles as a source of international law and the role of general principles in national and regional legal orders, such as EU law; (iii) the specific role which general principles play in three selected sub–fields of international law, namely international investment law, international environmental law and international human rights law.

The seminar will be held in English and French. Le séminaire se déroulera en français et en anglais. Venue: Centre Universitaire de Norvège à Paris Fondation Maison des Sciences de l’Homme 190, Avenue de France, 75013 Paris

Places are limited. Please register with paris.seminar2017@gmail.com

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Thursday 23 March 2017, 14.00 – 18.30

14.00 - 14.10 Registration 14.10 - 14.15 Welcome Address

Johs Hjellbrekke – Centre Universitaire de Norvège à Paris 14.15 - 14.30 Introductory Remarks - General Principles: Cohesion and Expansion of International

Law Mads Andenæs – University of Oslo and Ludovica Chiussi – University of Oslo and University of Bologna

14.30 - 14.50 Keynote Speech

Giorgio Gaja – Judge, International Court of Justice

14.50 - 16.35 GENERAL PRINCIPLES AND THE OTHER SOURCES OF INTERNATIONAL LAW Chair: Rolf Einar Fife – Norwegian Ambassador to France General Principles as a Basis for Promoting the Formation of New Customary Rules Paolo Palchetti – University of Macerata

General Principles of Law, Jus Cogens and the Unity of the International Legal Order Robert Kolb – University of Geneva

General Principles Infra, Praeter, Contra Legem? The Role of Equity in Determining Reparation Enrico Milano – University of Verona Judicial Decisions as ‘Formative Elements’ of General Principles and ‘Subsidiary Means’ for their Determination: Between ‘Authority’ and ‘Dialogue’ Johann Ruben Leiss – University of Oslo

The Relevance of Good Faith for the Application of Treaty Law: Good faith as a Principle of Legal Pragmatics Ulf Linderfalk– University of Lund

16.35 - 17.00 Break

17.00 - 18.30 THE INTERPLAY WITH NATIONAL AND REGIONAL LEGAL SYSTEMS Chair: Jan Wouters – KU Leuven

General Principles in Balancing International and National Legal Values Pasquale De Sena – Catholic University of Milan The General Principles of EU Law: Who Needs Them? Takis Tridimas – King’s College London

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General Principles of EU Law and General International Law Emanuel Castellarin – University of Strasbourg The Interpretation of UN Security Council Resolutions between Regional and General International Law: What Role for General Principles? Matthias Lippold – University of Göttingen

Friday 24 March 2017, 09.30 – 16.00

09.30 - 09.45 Registration

09.45 - 11.00 GENERAL PRINCIPLES AND INTERNATIONAL INVESTMENT LAW Chair: Attila Tanzi – University of Bologna

General Principles of Commercial Law and International Investment Law Andrea Carlevaris – ICC International Court of Arbitration

Unjust Enrichment Ben Juratowitch, QC – Freshfield Bruckhaus Deringer

General Principles and the Coherence of International Investment Law: of Res Judicata, Lis Pendens and the Value of Precedents August Reinisch – University of Vienna

11.00 - 11.15 Break

11.15 - 12.45 GENERAL PRINCIPLES AND INTERNATIONAL HUMAN RIGHTS LAW Chair: Bruno Simma – Judge, Iran–United States Claims Tribunal

Manufacturing State Practice: Dressing Human Rights Principles in the Guise of Customary Law Payam Akhavan – McGill University

Coherence between Human Rights Law and the Laws of War Andrew Clapham – Graduate Institute of International and Development Studies General Principles on Business and Human Rights Régis Bismuth – Sciences Po Law School, Paris Reparations Principles at the International Criminal Court Juan Pablo Pérez León Acevedo – University of Oslo

12.45 - 13.45 Lunch Break

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13.45 – 15.00 GENERAL PRINCIPLES AND INTERNATIONAL ENVIRONMENTAL LAW

Chair: Malgosia Fitzmaurice – Queen Mary University of London Environmental Impact Assessment and the Precautionary Approach: Why Are International Courts and Tribunals Reluctant to Consider Them as General Principles of Law? Tullio Treves – Curtis, Mallet-Prevost, Colt & Mosle LLP

General Principles of International Environmental Law in the Case Law of

International Courts and Tribunals

Makane Mbengue – University of Geneva

General Principles for the Protection and Sustainable Development of Cultural Heritage Francesco Francioni – European University Institute

15.00 - 16.00 CONCLUDING DEBATE Moderated by Abdulqawi Ahmed Yusuf – Vice-President, International Court of Justice

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THE SPEAKERS

Payam Akhavan is a Professor at McGill University in Montreal. He teaches and researches on public international law, international dispute settlement, international criminal law, human rights and cultural pluralism. He received the degree of Doctor of the Science of Jurisprudence (SJD) from Harvard Law School and, prior to joining McGill, he was a Senior Fellow at Yale Law School, and a UN prosecutor at The Hague. In 2016, he was appointed a Member of the Permanent Court of Arbitration established under the 1899 Hague Convention on the Pacific Settlement of Disputes. In 2017, he will deliver the Massey Lectures. He has published extensively in leading journals, including the widely-cited “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” in 95 American Journal of International Law 7 (2001), selected by the International Library of Law and Legal Theory as one of “the most significant published journal essays in contemporary legal studies.” He is also author of the Report on the Work of the Office of the Special Advisor of the United Nations Secretary-General on the Prevention of Genocide (2005), served as Chairman of the Global Conference on the Prevention of Genocide (2007), and is Co-Producer of the documentary film “Genos.Cide: The Great Challenge” (2009). His book “Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime” (2012) from Cambridge University Press has been endorsed by the former Prosecutor of the International Criminal Court as “a profound re-thinking of efforts to transform global aspirations into reality.” Professor Akhavan was the first Legal Advisor to the Prosecutor’s Office of the International Criminal Tribunals for the former Yugoslavia and Rwanda at The Hague (1994-2000) and made significant contributions to its foundational jurisprudence. He has also served in the field with the UN in Bosnia, Croatia, Cambodia, Guatemala, Timor Leste, and Rwanda. He is a member of the Law Society of Upper Canada and the New York State bar and has appeared as counsel and advocate in leading cases before the International Court of Justice, the International Criminal Court, the Permanent Court of Arbitration, the International Tribunal for the Law of the Sea, the European Court of Human Rights, and the Supreme Courts of Canada and the United States.

Mads Andenæs holds a Chair in the Faculty of Law, the University of Oslo (from 2008). He has held senior academic appointments in the United Kingdom, including as Director of the British Institute of International and Comparative Law, London and Director of the Centre of European Law at King’s College, University of London. He remains a Visiting Research Fellow of the Institute of European and Comparative Law, University of Oxford and a Senior Research Fellow at the Institute of Advanced Legal Studies, School of Advanced Studies, University of London. He was a Visiting Professor at University of Paris I (Sorbonne) in 2006 and at l'École normale supérieure, Paris in 2008. He has held the Chaire W J Ganshof van der Meersch under the Fondation Philippe Wiener—Maurice Anspach at the Université Libre de Bruxelles, the Chaire Vincent Wright at Sciences-Po, Paris, and he has been a Herbert Smith Visitor at the University of Cambridge. In 2005 he was a Fellow of Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS). He has been a visiting professor at University of Rome La Sapienza 2002-13. In 2005 he held the Paul Hastings Visiting Professorship at the Faculty of Law at the University of Hong Kong, and he is currently a member of the Advisory Board of the HKU Asian Institute of International Financial Law. In 2006 he delivered the Annual Guido Carli Lecture at the University of LUISS Guido Carli, Rome. He has been a part time professor at the European University Institute, Florence where he participated in a research project on European regulatory private law. In 2016 he was a Visiting Fellow at All Souls College, University of Oxford. He has been the General Editor of the International and Comparative Law Quarterly (Oxford University Press, then Cambridge University Press). He is currently the General Editor of European Business Law Review and an Editor of European Public Law (both Kluwer Law International) and on the editorial boards of some ten other law journals and book series, including as member of the Advisory Committee of Peking University Law Journal. He was the UN Special Rapporteur on Arbitrary Detention, and the Chair of the UN Working Group on Arbitrary Detention which reports to the UN Human Rights Council and the

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UN General Assembly. He was appointed a UN Human Rights Mandate Holder serving and a member of Working Group in 2009, and was elected chair and Special Rapporteur in 2013. His second three year appointment (which was non-renewable) ran out in 2015. He is a member of the Executive Council of the International Law Association. He is a member of the ICSID Panel of Arbitrators. As a Panel member, he may be appointed to arbitral tribunals and ad hoc Committees constituted pursuant to the ICSID Convention or the ICSID Additional Facility Rules. Mads Andenas was educated in Norway and England, and holds the degrees of Cand jur (Oslo), PhD (Cambridge) and MA and DPhil (Oxford). He was a Fulbright Fellow at Columbia University in 1990-91. He is a chevalier de la Légion d'honneur of France and a Commendatore dell'Ordine al Merito della Repubblica Italiana. He is an Honorary Fellow of the Society of Legal Studies (UK), a Fellow of the International Academy of Commercial and Consumer Law (where he is presently a member of the board), an Honorary Fellow of the British Institute of International and Comparative Law, and a Fellow of the The Royal Society of the Arts.

Régis Bismuth (Ph.D. Sorbonne, LL.M. Columbia) is Professor of Public Law (Professeur Agrégé de Droit Public) at Sciences Po Law School. He has also taught at the Universities of Paris-Sorbonne, Nanterre, Poitiers, Strasbourg, Bucarest and Belo Horizonte. Pr. Bismuth’s main research and teaching interests lie within public international law, international economic law (trade, investment, monetary and financial regulation), international litigation and European law. He is the author of a monograph entitled "La coopération internationale des autorités de régulation du secteur financier et le droit international public" (Bruxelles, Bruylant, 2011) and editor of "La standardisation internationale privée - Aspects juridiques" (Bruxelles, Larcier, 2014). He is also the author of several articles on sovereign wealth funds, sovereign debt, WTO law, international investment law and arbitration, international financial standards, economic sanctions, and the responsibility of multinational corporations.

Andrea Carlevaris is Secretary General of ICC International Court of Arbitration (Paris) and Director of Dispute Resolution Services of the ICC. Before joining the ICC in September 2012, Mr Carlevaris was a partner in the Rome office of Bonelli Erede Pappalardo. His practice covered international arbitration, judicial proceedings involving issues of public international law, conflicts of law and international civil procedure. Mr Carlevaris joined Bonelli Erede Pappalardo in 2003 and became partner in 2010. Previously, he was counsel at the Secretariat of the International Court of Arbitration of the International Chamber of Commerce. Mr Carlevaris graduated magna cum laude from the University of Rome (La Sapienza), where he received a doctorate in international law in 1999. Mr Carlevaris was admitted to the Italian Bar in 1999. Mr Carlevaris has been a member of the International Court of Arbitration and of the Commission for International Arbitration of the International Chamber of Commerce. He is also a member of the Steering Committee of the International Arbitration Commission of the UIA (Union Internationale des Avocats) and of the Board of Directors of AIA (the Italian Association for Arbitration). He is one of the founders of ArbIt (Italian Forum on International Arbitration and ADR).Mr Carlevaris is the author of a monograph on conservatory and provisional measures in international arbitration and of numerous articles. He regularly contributes to several journals, including the Rivista dell'arbitrato, serving on the journal's editorial board. In 2011, Global Arbitration Review indicated him as one of the most prominent international arbitration lawyers under the age of 45 ("45 under 45").

Emanuel Castellarin is professor at the University of Strasbourg since September 2016. Previously, he was a senior lecturer (maître de conférences) at the Sorbonne Law School (Université Paris 1). He holds law degrees from the University of Pisa and the Sorbonne Law School, and diplomas of the Ecole Normale Supérieure (Paris) and The Hague Academy of International Law. An up-to-date version of his PhD thesis on the participation of the European Union in international economic institutions will be published in 2017. His other publications include articles and book chapters in international economic law, general international law and EU external relations law.

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Ludovica Chiussi is a Doctoral Research Fellow in international law at the University of Oslo (Faculty of Law, Norwegian Centre for Human Rights) and at the University of Bologna (School of Law). A fully qualified lawyer (Italy), she holds a Law Degree at the University of Bologna (2013) and a Master in International Relations and Human Rights from the Italian Society for the International Organizations (2014). She has been a visiting student at the Université Paris 1 Panthéon-Sorbonne, conducting her research for the Master thesis at Columbia University. After an internship at E&A Law Firm (London) and at the NGO Pro Natura International (Paris), she worked as an in intern at the Italian Ministry of Foreign Affairs (Human Rights and United Nations Office). She is currently part of the Kenyan legal team in the case Somalia v Kenya before the International Court of Justice. Andrew Clapham is Professor of International Law at the Graduate Institute of International and Development Studies, which he joined in 1997. He was also the first Director of the Geneva Academy of International Humanitarian Law and Human Rights (2006 - 2014). He is an Associate Member of Matrix Chambers in London. In 2014, he was nominated by Switzerland as an Arbitrator under the UN Law of the Sea Convention. He is the co-editor with Paola Gaeta and Marco Sassòli of a new Commentary to the Geneva Conventions of 1949 published by Oxford University Press in 2015. Pasquale De Sena (PhD in International Law, Florence, 1992) is Professor of International Law and Human Rights Law at the Catholic University of Milan (since 2011). He has taught International Law and International Human Rights Law in many Universities (Siena: 1992-1998; Palermo: 1998-2001; Naples "II": 2001-2004; Naples "Federico II": 2001-2011). Formerly Visiting Professor at the Universities "Paris II, Panthéon-Assas" (2012); "Paris I, Panthéon Sorbonne" (2010); Valencia (2008); "Strasbourg, 'Robert Schuman'" (2007). He has given lectures at the "International Institute of Human Rights, 'René Cassin'" (Strasbourg: 2007, 2008, 2010) and at many other foreign Universities and research Institutes. Founder and General Editor of "Diritti umani e diritto internazionale",;Secretary General of the "Italian Society for International and European Law" (2015-); member of the Executive Board of the "International Institute of Human Rights, 'René Cassin'" (2010-). His research interests range from general theory of international law, relationships among legal orders, international responsibility, state and state organs immunities, to human rights and their impact on international law. Rolf Einar Fife is Norway's ambassador to France. He served 2002-2014 as the Director General of Legal Affairs of the Norwegian Ministry of Foreign Affairs. Chair of the Council of Europe Committee of Legal Advisers on Public International Law 2008-2010. He has represented Norway in multilateral and bilateral negotiations and before international courts, including the International Court of Justice, the European Court of Human Rights and the WTO Appeals Body. He headed maritime delimitation negotiations with the Russian Federation (Barents Sea and Arctic Ocean treaties 2007 and 2010), with Denmark/Greenland/The Faroes (2006) and Iceland (2006). He headed the Norwegian team before the Commission on the Limits of the Continental Shelf. A graduate of the University of Oslo, he worked at the Polar Department, Ministry of Justice 1984/1985 and since 1985 at the Ministry of Foreign Affairs, with postings in the Middle East 1988-1990 and at the Norwegian Mission to the UN, New York 1990-1993. At the Ministry of Foreign Affairs he headed various units in its Legal Department prior to becoming its head in January 2002. Visiting Fellow at the Lauterpacht Centre for International Law, University of Cambridge 2009-2010. Member of the Permanent Court of Arbitration.

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Malgosia Fitzmaurice holds a chair of public international law at the Department of Law, Queen Mary University of London (QMUL). She specialises in international environmental law; the law of treaties; and indigenous peoples. She publishes widely on these subjects. Her latest publications are a monograph Whaling and International Law, Cambridge University Press, 2015 and (co-edited with Dai Tamada) Whaling in Antarctic: Significance and Implications of the ICJ Judgment, Brill/ Nijhoff, 2016. She has delivered a lecture on the International Protection of the Environment at the The Hague Academy of International Law. Professor Fitzmaurice was invited as a Visiting Professor to and lectured at various universities, such Berkeley Law School; University of Kobe; Panthéon-Sorbonne (Paris I). During 2013-2015, she was involved (with Professor Valsamis Mitsilegas) in a multi stakeholder project funded by the EU Commission on environmental crime. Professor Fitzmaurice teaches undergraduate and LLM modules in international environmental law and the law of treaties. She also supervises PhD students. She is Editor in Chief of International Community Law Review journal and of the book series published by Brill/Nijhoff Queen Mary Studies in International Law. She has also advised on the law of treaties and served as an expert in her areas of expertise.

Francesco Francioni (Doctor of Laws, Florence, and LLM, Harvard) is Professor, emeritus, of international law at the European University Institute, Florence and Professor of international law at LUISS University, Rome. He is a member (associate) of the Institut de droit international, a member of the Editorial Board of The International Spectator and of the Italian YBK of International Law, as well as General Editor (with A. Vrdoljak) of the Oxford University Press Series “Cultural Heritage Law and Policy”. He has been a member of the Italian delegation in numerous international negotiations and diplomatic conferences, as well as President of the UNESCO World Heritage Committee. Recently he was appointed Judge ad hoc in the UN Tribunal of the Law of the Sea as well as Arbitrator at the Permanent Court of Arbitration (The Hague). His recent publications include; War by Contract (OUP 2011 with N. Ronzitti); ‘Public and Private in the International Protection of Global Public Goods’, European J. Int. L. (2012); ‘Enforcing International Cultural Heritage Law (OUP 2013 with J. Gordely); and The EU, the US and Global Environmental Governance (Ashgate 2014 with C. Bakker).

Giorgio Gaja is a Judge of the International Court Justice since 2012. Honorary Doctor of Law, Dickinson Law School (1985). Professor of International Law, University of Florence (1974-2011), Dean of the Law School (1978-1981). Lecturer, Hague Academy of International Law (1981 and 2011). Part-time Professor, European University Institute (1980 and 1984-1985). Visiting Professor, Johns Hopkins University (1977-1978), University of Geneva (1983 and 1985), University of Paris I (1989 and 2000), University of Aix-Marseille III (1992), University of Michigan School of Law (1992), Columbia Law School (1996), and Graduate Institute of International Studies (2001). Member of the International Law Commission (1999-2011). Delegate of the Italian Government to the Vienna Conference on the Law of Treaties between States and International Organizations and between International Organizations (1986). Counsel to the Italian Government in the ELSI case before the International Court of Justice. Judge ad hoc in the cases concerning Legality of Use of Force (Yugoslavia v. Italy); Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime Dispute (Nicaragua v. Colombia); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Member of the Institut de droit international. Editor of the Rivista di Diritto Internazionale. Member of the Advisory Board of the Common Market Law Review, European Journal of International Law and Columbia Journal of European Law.

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Ben Juratowitch QC is the global head of Freshfields Bruckhaus Deringer public international law practice and a partner in the international arbitration group. He is active in cases involving sovereignty over territory, boundaries between States, the law of the sea, protection of foreign investments and a wide range of international commercial disputes, especially concerning energy and natural resources. He holds a BCL and DPhil in Law from the University of Oxford and he has been a Visiting Fellow at the Law Faculty of The London School of Economics and Political Science. Robert Kolb is a Professor of public international law at the University of Geneva since 2007. He holds a Bachelor of Laws from the University of Bern, a post-graduate degree in public international law (Graduate Institute of International and Development Studies, Geneva), an LL.M. in law of the sea (University College, University of London), a Ph.D. in international law from the Graduate Institute of International and Development Studies, Geneva, and was distinguished with a venia docendi on completion of his habilitation thesis from the University of Bern. Robert Kolb has worked as a legal advisor for the International Committee of the Red Cross (1998 - 1999) and sporadically for the Swiss Federal Department of Foreign Affairs (since 2000). He was the Secretary of the Institut de Droit International (1999 - 2003) and was a member of the Board of Directors of the University Centre for International Humanitarian Law (2001 – 2003), renamed the Geneva Academy of International Humanitarian Law and Human Rights in 2007. In 2008 he was the Director of Studies for the Hague Academy of International Law (Francophone stream). He has been lawyer with the law firm “Lalive et Associés” (Geneva). In 2011 he acted as a counsel for the German Government in the Jurisdictional Immunities case (Germany v. Italy) at the International Court of Justice. He was a lecturer in public international law at the Graduate Institute of International Studies, Geneva (1999 – 2002), and later an associate Professor at the University of Bern (2002-2007) and adjunct Professor at the University of Neuchatel (2003-2008). He has also taught at the Geneva Academy of International Humanitarian Law and Human Rights (and its predecessor institute), as well as the Catholic University of Milan, since 2002. Ulf Linderfalk is Professor of International Law in the Faculty of Law, Lund University, which he joined in 2001. He is a general international lawyer, who takes a special interest in questions relating to international legal structure. His research has examined issues arising from phenomena such as normative conflict, legal hierarchy, treaty interpretation, special regimes, cross-fertilisation among such regimes, legal principles, legal discretion, balancing, and conceptual terms. It combines analytical skills and a broad knowledge of international law with a keen interest in issues of theory including, in particular, language theory and pragmatics. Linderfalk is, since 2011, the Editor-in-Chief of the Nordic Journal of International Law.

Matthias Lippold studied at the Georg-August-University in Göttingen and at the New York University (LL.M. International Legal Studies 2014). He worked as Research and Teaching Fellow at the Institute of International Law and European Law in Göttingen and interned at the International Law Commission in 2014. He scientifically advises the student-run Goettingen Journal of International Law which he co-founded, and is near the end of his dissertation on the interrelationship of sources of international law. Currently, he serves as a clerk at the District Court as part of his Referendariat (legal traineeship/ clerkship).

Enrico Milano (B.A., Padua; LLM, Nottingham; Ph.D., LSE) is Associate Professor of International Law at the University of Verona (Italy). He has an extensive publication record in the field of public international law, having written numerous articles and book chapters on issues such as territorial disputes, statehood and recognition, dispute settlement and the law of international responsibility, the law of international watercourses. He is the author of Unlawful Territorial Situations in International Law, Brill, 2006 and Formazione degli Stati e processi di State-building:

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Kosovo 1999-2013, Editoriale Scientifica, 2013. He is a member of the ILA Committee on Recognition and Non-Recognition and course director of the M.A. in Governance of Emergencies at the University of Verona. Makane Moïse Mbengue is Associate Professor of International Law at the Faculty of Law of the University of Geneva. Prof. Mbengue is also a Visiting Professor at Sciences Po Paris (School of Law). He holds a Ph.D. in Public International Law from the University. He acts as a professor for courses in international law organized by the United Nations Office of Legal Affairs (OLA) and by the United Nations Institute for Training and Research (UNITAR). Prof. Mbengue acts as counsel in disputes before international courts and tribunals.

Paolo Palchetti (PhD, University of Milan) was born in Florence, Italy, on 4 September 1970. Since 2011 he is Full Professor of International Law at the University of Macerata, where he is also Director of the Ph.D. program in Legal Studies. He is the author of books and articles on various topics, especially in the fields of the law of international organizations, international security law, the law of international responsibility, international dispute settlement. He was professeur invité at Université Panthéon-Assas/Paris 2 (2011) and at Université Nice Sophia Antipolis (2013), professor visitante at the Universidade federal de Santa Catarina (2013), professor convidado at the Universidade Federal de Minas Gerais (2014) and MacCormick Fellow at the Edinburgh Law School of the University of Edinburgh (2016). In 2017 he will be professeur invité at Université Paris 1/Panthéon-Sorbonne. He is one of the managing editors of QIL-Questions of international law, member of the editorial committee of the Rivista di diritto internazionale, International Organizations Law Review, OXIO-Oxford International Organizations Database, and member of the board of directors of Diritti Umani e Diritto Internazionale. He acted as legal expert for the Italian Ministry of Foreign Affairs, serving, inter alia, as member of the Italian delegation to the Working Group on International Law (COJUR) of the European Union. He acted as counsel for several States in cases before the International Court of Justice, including in Pulp Mills on the River Uruguay (Uruguay), Jurisdictional Immunities of the State (Italy), and Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands). Since 2015 he is member of the Board of Directors of the Italian Society of International Law and European Law, having served as Vice-President of the Society in 2014-15. Juan Pablo Perez-Leon-Acevedo is a Post-Doctoral fellow at Pluri-Courts, Faculty of Law, University of Oslo, Norway. He holds a PhD in international law (Åbo Akademi University, Finland), an LLM (Columbia), and a LLB (Catholic University of Peru). He held positions at Åbo Akademi University, University of Pretoria and Catholic University of Peru. He also served in different capacities at, inter alia, the International Criminal Court, International Criminal Tribunal for the former Yugoslavia, the International Tribunal for the Law of the Sea, UN Office of Legal Affairs, and Peruvian Ministry for Foreign Affairs. August Reinisch has been a professor of international and European law at the University of Vienna since 1998. He currently serves as Head of the Section of International Law and International Relations and as Director of the LL.M. Program in International Legal Studies. He is a Member of the UN International Law Commission, a membre associé of the Institut de droit international, President of the Austrian Branch of the ILA and Executive Board member of the German Society of International Law. August Reinisch has served as arbitrator in investment cases mostly under ICSID and UNCITRAL Rules, and frequently provided expert opinions in the field. He is a Member of the ICSID Panels of Conciliators and of Arbitrators and of the Court of the Permanent Court Arbitration. He has published widely in international law with a recent focus on international investment law, the law of international organizations, international responsibility, human rights and non-state actors.

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Johann Ruben Leiss is a Research Fellow and doctoral candidate at the Faculty of Law at the University of Oslo since 2014. In 2015 he was a Visiting Research Fellow at the Lauterpacht Centre for International Law at the University of Cambridge (UK), and Visiting Research Scholar at the Jesus College. In 2014 he obtained the German Second State Examination at the Kammergericht in Berlin. During his Referandariat he worked, inter alia, for the law firm Redeker Sellner Dahs, the German Foreign Ministry and the German Federal Constitutional Court. In 2012 he obtained a Master's degree in Comparative, European and International Laws at the European University Institute in Florence. He graduated from the Faculty of Law at the University of Göttingen in 2011. Johann Ruben worked as a research assistant at the Göttingen Institute of Public International and European Law at the Chair of Professor Andreas L. Paulus and for the Joint Project “German Precursors to International Constitutionalism” between the Hebrew University (Jerusalem) and the University of Göttingen. Bruno Simma is Arbitrator at the Iran-United States Claims Tribunal as of 1 December 2012. He is a former Judge of the International Court of Justice (2003-2012) and William W. Cook Global Law Professor at the University of Michigan Law School. His professional experience includes serving as a member of the International Law Commission, being Professor of International Law and European Community Law at the University of Munich, being Counsel and Arbitrator in various international cases and being lecturer at the Hague Academy of International Law. Bruno Simma is co-founder and co-editor of the European Journal of International Law and co-founder of the European Society of International Law. He is an Associate (Member) of the Institut de Droit International. Attila Tanzi, Ph.D., is Chair of International Law at the University of Bologna. Counsel or arbitrator in various inter-state and investment arbitrations. Currently a Member of the PCA, a Member of the PCA specialised list of arbitrators for environmental disputes, Conciliator at the OSCE Court of Conciliation and Arbitration, Chairman of the Compliance Committee of the UNECE 1992 Water Convention. He advises governments and international organisations on international law issues. He has held numerous academic positions and has published extensively in English, Spanish, French and Italian on State responsibility, foreign investment law, environmental law, law of the sea, law of international organisations and jurisdictional immunities.

Tullio Treves, Doctor of Law, is Professor of International Law at the University of Milan and Judge at the International Tribunal for the Law of the Sea, Hamburg. He was the coordinator of the French Language Group of the Drafting Committee of the Third UN Conference of the Law of the Sea. He is a Member of the Institut de droit international, Law of the Sea Institute; and American, French and Italian Societies of International Law. In addition to delivering scholarly lectures at universities around the world, Judge Treves, is the author of numerous books and articles in various fields of public and private international law, law of the sea and environmental law. Takis Tridimas is Chair of European Law at King’s College London. He is a leading scholar in the field of European Union law. He is one of the most frequently quoted authors by Advocates General of the European Court of Justice and, on matters of EU law, by English courts. He joined King’s College in September 2013. Before then, he was the Sir John Lubbock Professor of Banking Law at Queen Mary College, University of London (2004-2013). He also served as référendaire (law clerk) to Advocate General Sir Francis Jacobs at the European Court of Justice (1992-1995). He was senior legal adviser to the EU Presidency (2003) and Chairman of the Committee set up by the EU Council of Ministers to draft the Treaty of Accession of 2003. He has acted as advisor or counsel to many public and private organizations, including the European Central Bank, the European Parliament, the European Commission and the EU Court of Auditors. Professor Tridimas is also the Nancy A. Patterson Distinguished Faculty Scholar and Professor at Pennsylvania State University. He is, or has been, visiting professor in many universities, including the College of Europe, Bruges, Sciences Po, Université Panthéon Assas (Paris II), and the University of Genova. He is a barrister at Matrix Chambers.

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Jan Wouters is Full Professor of International Law and International Organizations, Jean Monnet Chair ad personam EU and Global Governance, and founding Director of the Institute for International Law and of the Leuven Centre for Global Governance Studies, an interdisciplinary research centre with the status of Jean Monnet Centre of Excellence, at the University of Leuven (KU Leuven). He studied law and philosophy at Antwerp University, obtained an LL.M. at Yale University and was Visiting Researcher at Harvard University. As Visiting Professor at Sciences Po (Paris), Luiss University (Rome) and the College of Europe (Bruges) he teaches EU external relations law. As Adjunct Professor at Columbia University he teaches comparative EU-US perspectives on international human rights law. He is a Member of the Royal Academy of Belgium for Sciences and Arts, is President of the United Nations Association Flanders Belgium, and practises law as Of Counsel at Linklaters, Brussels. He is Editor of the International Encyclopedia of Intergovernmental Organizations, Deputy Director of the Revue Belge de Droit International, and an editorial board member in ten other international journals. He has published widely on international and EU law, international organizations, global governance and financial law, including 60 books, 130 journal articles and 200 chapters in international books. His recent books include The European Union and Multilateral Governance (2012), International Prosecutors (2012), Informal International Lawmaking (2012), Private Standards and Global Governance (2012), China, the European Union and Global Governance (2012), The EU’s Role in Global Governance (2013), National Human Rights Institutions in Europe (2013), The Law of EU External Relations (2nd ed. 2015), China, the EU and the Developing World (2015), Global Governance of Labour Rights (2015), Global Governance Through Trade: EU Policies and Approaches (2015), The Contribution of International and Supranational Courts to the Rule of Law (2015), Global Governance and Democracy: A Multidisciplinary Analysis (2015), Armed Conflicts and the Law (2016), Judicial Decisions on the Law of International Organizations (2016) and Internationaal Recht in Kort Bestek (2nd ed. 2016). Apart from his participation in international scientific networks, he advises various international organizations and governments, trains international officials and is often asked to comment international events in the media. He is coordinator of a large-scale FP7 Programme FRAME, “Fostering Human Rights Among European (External and Internal) Policies”, and of the Baillet Latour EU China Chair, at KU Leuven. In the academic year 2016-2017 Jan Wouters is Visiting Professor at the Hebrew University of Jerusalem, and Herbert Smith Freehills Visiting Professor at the Lauterpacht Centre for International Law, Cambridge University.

Abdulqawi Ahmed Yusuf is the Vice-President of the International Court of Justice since 2015, and member of the Court since 2009. Ph.D. in international law from the Graduate Institute of International Studies of Geneva. Legal Adviser and Director of the Office of International Standards and Legal Affairs for UNESCO from March 2001 to January 2009, Legal Advisor (1994–1998) and Assistant Director General for African Affairs, United Nations Industrial Development Organization (UNIDO), Vienna (1998–2001), Representative and Head of the New York office of the United Nations Conference on Trade and Development (UNCTAD) (1992–1994) and Chief of the Legal Policies Service of UNCTAD( 1987–1992), Lecturer in law at the Somali National University (1974–1981) and at the University of Geneva(1981–1983), and Somali delegate to the Third United Nations Conference on the Law of the Sea (1975–1980). He has also been guest professor and lecturer at a number of universities and institutes in Switzerland, Italy, Greece and France. Yusuf is the founder and General Editor of the African Yearbook of International Law and is a Member of the Institut de droit international (Geneva). He is also one of the founders of the African Foundation for International Law, as well as the chairperson of its Executive Committee.

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ABSTRACTS

DRAFT BACKGROUND/CONCEPT NOTE

GENERAL PRINCIPLES: COHESION AND EXPANSION OF INTERNATIONAL LAW

Mads Andenæs and Ludovica Chiussi

General Principles are “cement which makes firmer cohesion of international law with legal orders, which enables conceiving all legal phenomena of humanity from the angle of unity”1. This seminar is about the role of general principles in the international legal system. Treaty law and custom may contribute to the fragmentation of international law. Principles instead are only recognised if they are general. They have a potential force of convergence to unify international law. They also have a residual function as a gap-filler, and the lex specialis principle could entail that treaty law and custom would operate as lex superior. Yet, this is not always the case and general principles could sometimes constitute peremptory norms (jus cogens), be non-derogable and applying erga omnes. General principles of law represent the normative pillar of every legal system. The Committee of Jurists who drafted the Statute of the Permanent Court of International Justice (PCIJ) provided the Court with a tool to promote coherence. The Statute of the International Court of Justice (ICJ) provides for the applicable law in Article 38, and in (1)(c) it includes ‘the general principles of law recognized by civilized nations’ after treaties in (a.) and custom in (b.). Litra (c) was intended as an enabler, preventing non liquet, but also restricting the ICJ to this list of formal sources. Article 38 of the Statute of the International Court of Justice reproduces the text of the Statute of the PCIJ, reconfirming it in what is a part of the Charter of the United Nations, of which it is an Annex. There is much case law and scholarship on conventions and custom. The Vienna Convention on the Law of Treaties (1969) is the outcome of a long process with the text of the convention drafted in the International Law Commission. Section 3 on Interpretation of Treaties, and in particular Articles 31 and 32, provide a canon of treaty interpretation, recognised as custom and containing important principles. The recent ILC Draft Conclusions on the Identification of customary international law, on the other hand, makes an important contribution to the methodology of custom. There is nothing similar on the general principles of law. The formal recognition of general principles of law in Article 38(1)(c) ICJ Statute provides an institutional dimension. General principles of law are applicable law, and they are formal sources of law. As in most domestic systems, general principles of law are used in the application of other sources such as constitutions, legislation, judgments, and other forms of practice. The process goes the other way when determining the general principles of law. But international law is different from most domestic legal systems in the formal recognition of such principles. This seminar will focus on principles and the convergence and coherence in the international legal system. The programme for today and tomorrow brings together a series of perspectives. (…) A seminar in June will continue to explore the role of international courts and tribunals in developing general principles of law, still with the focus on convergence to unify international law. The shared research question is whether international practice and case law provide evidence to the effect that, next to their gap-filling function, general principles have strengthened the systemic nature of international law, both at the substantive and procedural levels.

1 Max Sørensen, Principes de droit international public, 101 Recueil de cours, p.16.

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GENERAL PRINCIPLES AS A BASIS FOR PROMOTING THE FORMATION OF NEW CUSTOMARY RULES

Paolo Palchetti

It is a frequent observation that in the development of general international law, principles tend to precede customs. General principles are gap-fillers. Their role is greater when the need arises to fill the gaps in the body of international rules. By filling gaps, general principles contribute to the development of the law. In particular, the use of general principles to identify the rule of conduct applicable in a certain circumstance may set a process in motion that, in the long run, through the accumulation of practice, may lead to the emergence of a customary rule. In this sense, principles precede practice and may promote the formation of a new customary rule. The presentation will concentrate on this legal dynamic between principles and customs. The object is to illustrate the different ways in which general principles may contribute to the development of customary rules. In particular, a distinction will be made between three different situations. In drawing this distinction, account will be taken of the different origin of general principles – whether in domestic law or in international law – and of the different functions they may perform – to fill gaps or to interpret the law.

GENERAL PRINCIPLES INFRA, PRAETER, CONTRA LEGEM? THE ROLE OF EQUITY IN DETERMINING REPARATION

Enrico Milano

Conventional wisdom among international lawyers dictates that the frequent resort to the general principle of equity in international adjudication must be captured through the lenses of “international legality”: namely the extent to which the judge is employing equity in order to give effect to positive rules (equity infra legem), to fill existing gaps within the law (equity praeter legem) or to come to final adjudication, despite the law, and in application of the principles of fairness and justice (equity contra legem). It is common knowledge that the latter possibility is restricted under Art. 38(2) of the ICJ Statute by the condition of parties’ consent. On the other hand, as the ICJ has made clear in Case Concerning the Continental Shelf (Malta/Lybia) “the legal concept of equity is a general principle applied as law” and should not be conceived in contrast to positive legality; to that extent it is a source of legal obligations for States under Art. 38(1)(c) of the Statute. These distinctions, while in principle useful for analytical purposes, tend to become blurred if we look at the practice of international courts and tribunals; also they assume a rather simplistic understanding of the essence and nature of international law, in which the application of the law is a mechanical exercise possibly to be delegated in the not so distant future to intelligent machines. An enquiry into a number of selected cases (Loan Agreement Arbitration between Italy and Costarica, Land and Maritime Boundary Dispute between Cameroon and Nigeria, Eritrea-Ethiopia Claims Commission, Sadio Diallo, ECtHR judgment in Cyprus v. Turkey) in which equity was implicitly or explicitly resorted to in order to determine reparation shows that the Chorzow Factory formula - whereby “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” or imply “if [restitution in kind] is not possible, payment of a sum corresponding to the value which a restitution in kind would bear” – is misleading to the extent that it establishes a rigid hierarchy of forms of reparation and it is often adapted by international courts with reference to considerations of equity and procedural fairness. Factors taken into account by international courts and tribunals in order to “adjust” reparations on the basis of equity include procedural standards of proof, the nature of the injury suffered, the purpose of the rule breached,

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considerations of substantive justice applicable in the relations between the parties and the way reparation may affect fundamental human rights of the population. Drawing inspiration from Kelsen’s Interwar writings, one is led to notice that when determining reparation the judge is engaged in “individualised law-making”, namely in the exercise of concretising positive law on the basis of higher treaty and customary rules providing for judicial competence. That applies in particular, but not exclusively, to customary rules, including those concerning reparation, where general principles provide the tools by which abstract, general norms are translated in normative prescriptions applicable to specific facts. Needless to state, in Kelsen’s theory the distinction between application of the law and creation of the law collapses, making the very notion of equity contra legem moot. But even maintaining the distinction between the two distinct legal processes, and aside from hyper-formalist understandings of international law, equity remains the quintessence of the judicial function in determining reparation and a general principle of law that can hardly be located outside the realm of the law as interpreted and applied by the judge.

JUDICIAL DECISIONS AS ‘FORMATIVE ELEMENTS’ OF GENERAL PRINCIPLES AND

‘SUBSIDIARY MEANS’ FOR THEIR DETERMINATION: BETWEEN ‘AUTHORITY’ AND

‘DIALOGUE’

Johann Ruben Leiss The ICJ’s practice to refer to decisions of other courts and tribunals when determining general principles has increased during the last decade. However, the Court has been reluctant to clearly indicate whether it referred to other judicial decisions as ‘subsidiary means’ or as ‘formative elements’ for the determination of general principles. The starting point of the paper is that conceptualizing the use of judicial decisions of other courts and tribunals under Article 38(1) ICJ Statute may offer a better understanding for the systemic potential of Article 38 for international adjudication. The main argument of the paper is that litra (d) of Article 38(1) provides a framework for judicial dialogue and for ‘content-dependent authority’ of other judicial decisions; whereas litra (c) provides a framework for ‘content independent authority’ of other judicial decision. From this perspective, both provisions – alongside litra (a) and (b) of Article 38(1) dealing with custom and subsequent practice – give expression to the heterogeneous, non-hierarchical structure of international adjudication. At the same time they provide for formal frameworks of judicial interaction and a structure with a systemic potential to avoid conflicting judgments, to mitigate concerns of judicial legitimacy and accountability, and to enable the construction of an international judicial system.

THE RELEVANCE OF GOOD FAITH FOR THE APPLICATION OF TREATY LAW: GOOD

FAITH AS A PRINCIPLE OF LEGAL PRAGMATICS

Ulf Linderfalk

An important element of any further research into the function of the general principles of international law is a comparative study of the operation of singular norms that come clearly within the extension of this normative category. The contribution of this paper to this common effort is a study of the operation of the principle of good faith. As the paper seeks to establish, a fuller understanding of the operation of the principle of good faith helps to understand the function or functions of general principles in international legal discourse, generally. Three propositions are argued. First, good faith serves as a principle of international legal pragmatics. It

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helps to explain the understanding of conduct in much the same way as the requirement that in a verbal utterance, the first singular pronoun “I” be used to refer to the utterer, and a temporal expression such as “now” to the point in time of the utterance. Second, unlike many general principles of international law, the principle of good faith does not itself presuppose the good of any particular state of affairs. It helps to ensure the comprehension of communicative behaviour on the part of international law-makers (that is, states and international organisations), irrespective of the particular interests or values that they themselves happen to be pursuing. Thus, the principle of good faith can be accommodated with a value-pluralist legal order. Third, in international law, there other norms that share with the principle of good faith the distinguishing traits outlined in this paper, such as for example the principle of pacta sunt servanda and the principle of proportionality. It stands to reason that they, too, be characterised as principles of international legal pragmatics.

GENERAL PRINCIPLES OF EU LAW AND GENERAL INTERNATIONAL LAW

Emanuel Castellarin

Like all courts and tribunals, the European Court of Justice (ECJ) discovers and applies general principles of its legal order. The ECJ spontaneously plays a crucial role in the (denial of) application of general international law through general principles of EU law. Thus, general principles prove to be a very flexible tool to shape convergence and autonomy between legal orders. In some cases, general international law is a source of inspiration for general principles of EU law. The ECJ applies some principles of international law, such as good faith or the principle lex posterior, as general principles of EU law. Consistently with well-known doctrinal debates of public international law, the Court’s case law hesitates on the precise qualification of some of these principles, sometimes referred to as customary rules and sometimes arguably considered as general principles of law. Be it as it may, these principles are applied as a source of EU law, i.e. they are incorporated in the EU legal order. As “truly” general principles, they are common to the international legal order and to the EU legal order. However, the ECJ does not automatically consider general international law as a material source of general principles of EU law. Sometimes, the Court applies a principle of EU law instead of an equivalent principle of international law, e.g. the protection of legitimate expectations instead of good faith. In this case, the use of different legal language reflects a different attitude vis-à-vis national legal orders, which are the primary source of inspiration of both kinds of general principles. Indeed, the Court tends to prefer a reference to the constitutional traditions common to the Member States (i.e., national law), a competing material source of general principles of EU law. Remarkably, the application of some principles of general international law, such as the exceptio non adimpleti contractus or those governing the formation of “institutional” customary law, is explicitly excluded by the ECJ. The Court’s approach is completed by the development of a specific set of general principles proper to EU law concerning relations between EU institutions and between EU law and national legal orders. These principles are the core of EU law as a specific and autonomous legal order whose identity is based on a significant departure from the logic of general international law.

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THE INTERPRETATION OF UNSCRS BETWEEN REGIONAL AND GENERAL INTERNATIONAL

LAW: WHAT ROLE FOR GENERAL PRINCIPLES?

Matthias Lippold The question of the interpretation and application of Security Council resolutions (UNSCRs) has occupied a central place in the international debate for over a decade in the light of economic sanctions, targeted sanctions and military missions under UN mandate. Over its course this debate focused on different aspects: whether and to what extent the Security Council itself is bound by international human rights law, whether UNSC authorizations prevail by virtue of article 103 UNC over human rights treaties and their provisions, and whether there is the possibility of a conflict between „authorizations“ and „obligations“. The most recent aspect can be described as accommodation by interpretation: the aim is to achieve a pragmatic balance (praktische Konkordanz) between different norms by enabling the realization of each in a considerate way. In this sense, the European Court accommodated in Hassan its interpretation of article 5 ECHR to the articles on security internment in the Geneva Conventions. Whether and to what extent such approach could be applied to the relationship between UNSCRs and the ECHR was debated by the parties and the judges of the UK Supreme Court in the Mohammed judgment from January 2017. The paper on which the presentation will be based attempts to bring the different threads together that run through the case-law on the interpretation of UNSCRs. It will identify four stages in the case-law of the European Court, from deference, to self-assertion based on general international law, to refinement, towards a more regional approach. It is submitted that the recent Al-Dulimi judgment from June 2016 departs from the court’s earlier stages by putting more emphasis in its reasoning on regional particularities than on arguments based on general international law. In contrast, courts in the UK, namely the Court of Appeal and the UK Supreme Court in the Mohammed et al. litigation, expressed concerns with respect to a regional approach. Having in common a similar interpretative attitude that attempts to accommodate UNSCRs with other international legal obligations, the judgments slightly differ from the European Court with respect to the exact calibration of the relationship. Furthermore, the UK Supreme Court stressed the importance of general rules and principles, both at the stages of the interpretation and of the application/implementation of UNSCRs. The paper will analyze and evaluate the different approaches to the interpretation and application of UNSCRs which oscillates between regional and general international law. It will identify the potential and difficulties for the concept of general principles in this context. General principles can be a means to strengthen and promote convergence and international cooperation at the stages of interpretation and of application/implementation of UNSCRs in different ways. How regional and general approaches can be reconciled through the concept of general principles will be exemplified by the principle of abuse of rights, which in the guise of the “prohibition of arbitrariness” appeared in the above-mentioned cases. Based on this case-study a couple of observations will be submitted on how old principles such as the prohibition of the abuse of rights operate today. It is submitted that the diversification and expansion of international law do not render recourse to such principles dispensable. Rather, general principles of law are both responsive to these developments and capable of offering guidance and orientation. They will continue to occupy an important place in the structure of the international legal order.

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GENERAL PRINCIPLES AND THE COHERENCE OF INTERNATIONAL INVESTMENT LAW: OF

RES JUDICATA, LIS PENDENS AND THE VALUE OF PRECEDENTS

August Reinish The development of international investment law is largely driven by case law. Thus, the consistency of this investment jurisprudence is of particular importance to ensure the coherence of the field. Faced with similar issues of consistency, domestic legal systems have developed different principles, some of which have emerged as general principles of law. Most prominent among these are res judicata and lis pendens which aim at avoiding the re-litigation of already decided or pending cases. More contentious, however, has remained the debate to what extent prior judicial decisions should be awarded precedential value beyond the specific dispute. Domestic approaches to precedent are divided between the common law doctrine of stare decisis, in which judicial decisions are binding, and the civil law tradition with its primacy of statutory law. Still, also civil law jurisdictions have developed notions like established jurisprudence or jurisprudence constante which ascribe a certain precedential value to judicial decisions. Taking domestic legal orders as a comparative basis, this contribution discusses how different techniques and approaches ensure consistency in investment jurisprudence. It first examines how the general principles of lis pendens or res judicata already serve to avoid inconsistent outcomes with regard to specific disputes. Thereafter, it discusses the issue of precedent, i.e. how judicial decisions may impact subsequent unrelated cases. For that purpose, it examines domestic approaches, from common law, civil law and mixed jurisdictions, regarding precedent and discusses the theoretical possibility of a general principle of law in that regard as well as dogmatic and practical challenges connected therewith. As a last part, this contribution gives an overview of arbitral practice relating to the value of precedent and argues in favor of adopting a rule of law perspective towards this issue.

COHERENCE BETWEEN HUMAN RIGHTS LAW AND THE LAWS OF WAR

Andrew Clapham It is difficult to point to a general principle regulating the relationship between human rights law and international humanitarian law. One has to look at the question rule-by-rule and sometimes even treaty by treaty. In recent years the tension has been exposed in the situation of detainees in armed conflict, in particular in non-international armed conflict. This is a field in flux and a few recent decisions are discussed. While the situation may be now relatively clear with regards to prisoners of war and civilian internees in occupied territory, it is less certain whether human rights law allows for an accommodation of international humanitarian law in times of non-international armed conflict where the protective regime of international humanitarian law is less developed. The situation is further complicated by the fact of detentions by rebel armed groups. The most uncharted territory is, however, the relationship between human rights law and the jus ad bellum. Is a deprivation of life arbitrary if taken in violation of Article 2(4) of the UN Charter? Inside armed conflict? Outside armed conflict? Recent work on the right to life by the UN Human Rights Committee and the African Union’s Commission points to the need for legality under other branches of applicable international law to avoid arbitrariness. Coherence here demands an understanding of the context, and the general principle being applied is perhaps a principle of treaty interpretation: that other relevant rules of international law be taken into account when interpreting terms like 'arbitrary' in the human rights treaty.

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REPARATIONS PRINCIPLES AT THE INTERNATIONAL CRIMINAL COURT

Juan Pablo Perez-Leon-Acevedo It is a principle of international law that the violation of an international obligation involves an obligation to provide reparations. At the international level, victims of serious human rights violations have claimed reparations against states mainly at human rights courts. However, international reparations systems have progressively included individual-vs-indivual litigation. Unlike previous international criminal tribunals, the International Criminal Court (ICC) introduced a reparations system for victims of crimes under its jurisdiction. Additionally, led by the ICC example, victims can claim reparations at most post-ICC hybrid criminal tribunals. In turn, although fragmentation/diversification characterizes the expansion of international law and international courts, coherence and unity/integration of the international legal order are strongly needed. Coherence underlies the process of identifying general principles of law at the international judiciary, including the ICC reparations principles. As implemented in Lubanga, the ICC Chambers are tasked with establishing reparations principles (ICC Statute, article 75(1)). Coherent reparations principles are indeed crucial as foundations of the ICC reparations system.

Against this background, this paper seeks to analytically examine the context, contours and contents of the ICC reparations principles in three sections. First, the context within which the ICC reparations principles operate is discussed. The importance of coherence in international law and international criminal law amidst fragmentation/diversification is examined. Then, the legal meaning of ‘principles’ as ICC legal sources under article 21 (applicable law) of the ICC Statute, i.e., ‘principles of international law’ (21(1)(b)) and ‘general principles of law derived by the Court from national legal systems’ (21(1)(c)), is discussed. Furthermore, the placement of the ICC reparations principles within ‘principles’, under the catalogue of sources applicable by the ICC, is critically examined.

The second section aims to determine the contours of the ICC reparations principles. Concerning their purpose, reparations principles are necessary to the internal coherence of the ICC reparations system, guaranteeing consistency and predictability of the ICC reparations practice. They also matter to external coherence with other international reparations systems as the ICC reparations system belongs to the international judiciary. The ICC mandate to judicially establish reparations principles is also examined. Attention is drawn to elements related to determining reparations principles such as timing, generality and adaptation of external legal sources on reparations to the ICC. Additionally, whether the ICC reparations principles should address not only the convicted but also other actors and entities is criticially assessed.

The third section discusses the contents of the ICC reparations principles under human rights-based categories, including: victims’ right to reparations, non-discrimination, rights of special groups, and defendants’ rights. Besides consideration of ICC Statute provisions on human rights, this human rights-based approach is chosen to analyse the reparations principles because the ICC Trial and Appeals Chambers in Lubanga have identified and crafted reparations principles largely based on international human rights law sources. The ICC reparations principles arguably constitute international (human rights) law principles adapted to the ICC. In turn, this approach better evidences the relationship between the ICC reparations system and an international law of reparations.

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GENERAL PRINCIPLES FOR THE PROTECTION AND SUSTAINABLE DEVELOPMENT OF

CULTURAL HERITAGE

Francesco Francioni International Law on the protection and sustainable management of cultural heritage, like the cognate branch on natural heritage, has known an impressive growth in the past fifty years. But this development has occurred mostly by way of treaties and to certain extent by “declarations” of competent international organisations (soft law). So the question of whether there are general principles applicable to this field, and binding upon all states independently of specific treaty commitments, is very pertinent and timely. The International Court of Justice (ICJ) has not produced any conclusive contribution to the clarification of this question. In one case of claimed restitution (Liechtenstein v. Germany 2005) the Court declined to exercise its competence; in another (Cambodia v Thailand , 1962 and 2003) it ruled that cultural property removed by Thailand from the contested site of Preah Vihear had to be returned to Cambodia but only as a consequence of the principle of territorial sovereignty, not on the basis of special principles of lex culturalis . Other cases brought before the ICJ have dealt indirectly with cultural heritage, as in Bosnia v Serbia, 2007, in which the Court did not endorse the concept of “cultural genocide”, and in Costa Rica v Nicaragua, 2009 in which the Court progressively held that adjudication of navigational rights of the disputing States had to take into consideration the living culture of local indigenous communities depending for their livelihood on the natural resources of the river. A more significant and systematic contribution to the development of general principles of international cultural heritage law can be found in the jurisprudence of regional human rights courts, in the diplomatic practice and in the standard setting efforts at the level of UNESCO and UN, as well as in arbitral practice. In this presentation I will examine this practice in four discrete areas: 1) the law of armed conflict and occupation; 2) cooperation in the fight against illicite trade in cultural property; 3) the protection and sustainable management of cultural heritage as a legitimate aim relevant in the implementation of international economic law (investment arbitration); 4) the principle of cultural property as common heritage of humanity.

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List of Participants

1. Payam Akhavan, McGill University

2. Mads Andenæs, University of Oslo (Organising Committee)

3. Maryam Ansari, Iran–United States Claims Tribunal

4. Giuseppe Barbagallo, ILO Administrative Tribunal

5. Giuseppe Bianco, University of Oslo, University Panthéon Sorbonne (Organising Committee)

6. Régis Bismuth, Sciences Po Law School, Paris

7. Hanna Bourgeois, University of Leuven

8. Marco Buzzoni, Université Paris 1 Panthéon-Sorbonne

9. Andrea Carlevaris, ICC International Court of Arbitration

10. Emanuel Castellarin, University of Strasbourg

11. Jackeline Patricia Cespedes Arteaga, University Paris 1 Panthéon-Sorbonne

12. Ludovica Chiussi, University of Oslo, University of Bologna (Organising Committee)

13. Andrew Clapham, Graduate Institute of International and Development Studies

14. Shirin Chua, Freshfields Bruckhaus Deringer LLP

15. Samuel Cogolati, University of Leuven

16. Giuditta Cordero Moss, University of Oslo

17. Pasquale De Sena, Catholic University of Milan

18. Mihalis Decastros, Three Crowns LLP

19. Mohamed Derras, UNHCR

20. Marija Đorđeska, EU Delegation to Malaysia

21. Catherine Drummond, Freshfields Bruckhaus Deringer LLP

22. Rolf Einar Fife, Norwegian Ambassador to France

23. Erlend Eriksen Gjein, University of Oslo

24. Malgosia Fitzmaurice, Queen Mary University of London

25. Francesco Francioni, European University Institute

26. Giorgio Gaja, International Court of Justice

27. Jean-Louis Halpérin, Ecole normale supérieure

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28. Astrid Iversen, University of Oslo

29. Ben Juratowitch, Freshfields Bruckhaus Deringer LLP

30. Robert Kolb, University of Geneva

31. Evelyne Lagrange, Université Paris 1 Panthéon-Sorbonne

32. Marie Lemey, Université Rennes 1

33. Ginevra Le Moli, Graduate Institute of International and Development Studies

34. Juan Pablo Pérez León Acevedo, University of Oslo

35. Ulf Linderfalk, University of Lund

36. Matthias Lippold, University of Göttingen

37. Makane Mbengue, University of Geneva

38. Natasha McNamara, Freshfields Bruckhaus Deringer LLP

39. Enrico Milano, University of Verona

40. Tibisay Morgandi, University of Cambridge

41. Elisa Moro, University of Verona

42. Ward Munters, University of Leuven

43. Stefania Negri, University of Salerno

44. Sontia Nkenkeu-Keck, Université Paris 2

45. Paolo Palchetti, University of Macerata

46. Matina Papadaki, Max Planck Luxembourg

47. August Reinisch, University of Vienna

48. Leila Rharade, Geneva Academy of International Humanitarian Law and Human Rights

49. Michalis Risvas, Three Crowns LLP

50. Johann Ruben Leiss, University of Oslo (Organising Committee)

51. Bruno Simma, Iran–United States Claims Tribunal

52. Bernard Stirn, Conseil d'Etat

53. Edoardo Stoppioni, Max Planck Luxembourg

54. Attila Tanzi, University of Bologna (Organising Committee)

55. Paul Tavernier, Université Paris 11

56. Jerome Tolno, Université Aix-Marsille

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57. Tullio Treves, Curtis, Mallet-Prevost, Colt & Mosle LLP

58. Takis Tridimas, King’s College London

59. Farida Valiullina, Humboldt University Berlin

60. Foivi Vlastou – Dimopoulou, Université Paris 1 Sorbonne – Panthéon

61. Evelien Wauters, University of Leuven

62. Jan Wouters, University of Leuven (Organising Committee)

63. Abdulqawi Ahmed Yusuf, International Court of Justice