Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback). Winner of the 2020 European Society of International Law Book Prize.
A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)
Daniel Peat’s parting thoughts in Comparative Reasoning in International Courts and Tribunals are that if we are to “understand the complexity and contextuality that interpretation inevitably entails” in both international law and domestic law, we need to acknowledge the “mutability” that US Supreme Court Justice Holmes speaks of in Towne v. Eisner (p. 221). Put differently, when interpreting a word, a term, a rule, a law, a treaty, context matters. Any practitioner worth his salt knows this. So, what’s new?
Peat admirably sets out to show how domestic law is used in international courts for interpretive purposes or in filling gaps in the applicable law. For a rather slim book of eight chapters, it packs plenty of information and useful authorities. After laying the groundwork in the introduction, Peat discusses the Vienna Convention on the Law of Treaties (VCLT), followed by chapters on the use of domestic law in the interpretation of the International Court of Justice, the World Trade Organization, international investment law and public law, the European Court of Human Rights, and the International Criminal Tribunal for the former Yugoslavia (ICTY).
In each chapter he impressively dissects a few example cases from which he tries (not always feasible) to draw general applicable principles of the use of domestic law by these adjudicative bodies. The sum total of his analysis can easily be distilled to the aphorism: it all depends.
Overall, it is an informative text with useful source material – particularly in the first two chapters. Rather expectedly, nothing hard and fast emerges from the chapters describing how particular courts interpret statutory provision or search for relevant jurisprudence to cobble together gap-filling legal elements, definitions, rules, etc. Either the examples are too few or the outcomes of the case studies too disparate to draw reliable conclusions – other than, as noted, that the use or nonuse of domestic law in interpreting international law is context-driven. What it revealed (something again that is all too familiar to the practitioner) is that the outcome is often dependent on the decision-maker’s biases and predilections – the manner in which Articles 31 and 32 of the VCLT are applied in interpreting the statutory provision, the selection of domestic law in identifying a rule, and so on.
None of this should be surprising. Indeed, in the international criminal law (ICL) context, I revert to my comments in my review of Judges and the Making of International Criminal Law. When a judge has a preordained destination, it is a mere matter of selecting (and ignoring) legal authority, contorting it on a Procrustean bed when necessary to creatively justify how this does not violate the principle of legality, as opposed to applying an objective interpretive matrix.
Disappointingly, in the chapter on the ICTY Peat falls short. The examples are few, the analysis somewhat light, and the conclusions not entirely solid.
For instance, in explaining how the judges came up with the definition of rape in Furundžija and Kunarac Peat overlooks an essential factor – there was no widespread canvasing of domestic laws, but rather of a select few, which, unsurprisingly, were those jurisdictions where the judges hailed from.
And while only a mode of liability, I would have enjoyed Peat’s analysis on the creation (I say) or articulation (as the late Judge Cassese would say) of joint criminal enterprise (JCE), where obscure Italian case law was used, among other questionable legal authority, to show the existence of JCE as a mode of liability under customary international law.
Peat could have, for instance, discussed Stakić as a fitting example on the (ab)use and nonuse of domestic law at the ICTY.
In Stakić, the Trial Chamber found that co-perpetration more closely resembles what most legal systems understand as “committing,” while the Appeals Chamber found its application to be ultra vires because it seemingly did not have support in customary international law or the ICTY’s jurisprudence. Interestingly, after the Stakić Trial Judgment the ICTY Office of the Prosecutor in 2005 contracted with the Max Planck Institute for Foreign and International Criminal Law to commission a comparative study of the criminal liability attributed to leaders of criminal groups, which concluded that co-perpetration, not JCE, was the mode of liability the world over. Judge Schomburg, Presiding Judge in Stakić, relied on the study in his 2006 dissenting opinion in Simić to support his position that co-perpetration is firmly entrenched in customary international law.
Of course, there are countless fine examples on how domestic law was used at the ICTY, although attempting to draw from them reliable interpretive principle is frustrating if not outright futile. The bottom line is that at the ICTY – as with virtually all other ICL courts – domestic law is conveniently referred to or not, to a large extent, based on subjective notions.
I cannot say that I am any wiser (though certainly more learned) having read Comparative Reasoning in International Courts and Tribunals, but I can say that it reaffirmed what I more or less have known from experience: interpretation often comes down to one’s philological, ideological, or political perspective. Victim-centered judges are more likely to interpret statutory provisions, rules, and law from a subjective, humanitarian perspective. Their selective use of domestic law reasoning (shop long and hard enough and one is bound to come up with some congenial authority) will be made to fit the VCLT rules of interpretation. And if we are to be honest, the use of the VCLT rules, broad as they are, is often a mere pretense to give cover to the decision-maker’s subjective views.
If you are in a quixotic hunt for a definitive formula or matrix on how judges interpret and apply ICL and domestic law, Comparative Reasoning in International Courts and Tribunals will disappoint. If, however, you are searching for a text that will enhance your appreciation on how domestic laws have been used in interpreting international law, then Comparative Reasoning in International Courts and Tribunals has much to offer. Peat’s analysis and conclusions, even if not always satisfying, are thought-provoking.
From the blog administrator: A previous version of this post inadvertently omitted several paragraphs. We apologize for the error.