Operating international law in a global context: presentation of a three steps method.

Author:Berge, Jean-Sylvestre


The operation of international law, in the variety of global legal situations, has its own dynamism. It cannot result from the mere application of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. In a single situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in one or several spaces or on one or several levels, by one or by multiple actors. This distinctive dynamic, which the lawyer must be conscious of when passing from one context--national, international or European--to another, has an influence over the law, its uses and, sometimes, its content. This article is a general presentation of a three steps method: comparison, combination and hierarchization of the operations of the law in the national, international and European contexts.

I Introduction

In a globalised environment, the expression 'global legal pluralism' (3) refers to a particular form of legal pluralism brought about by the phenomenon of the globalisation of law and its different forms (transnationalisation, standardisation, fragmentation, regionalisation, etc.). Although this pluralism has not escaped from forms of domination, it describes the multiplication of the sites of the application of international law which appear outside of, or transcend, the strict state model.

International law does not only operate within a single sphere. It results from the particular activity of national, international and regional organisations, notably European, whether they have a state origin (United Nations (UN), World Trade Organisation (WTO), International Labour Organisation (ILO), World Health Organisation (WHO), World Intellectual Property Organisation (WIPO), European Union (EU), International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), International Centre for the Settlement of Investment Disputes (ICSID), the European Court of Human Rights (ECtHR), etc.) or a private origin (non-governmental organisations, multinationals, professional associations, etc.). The national context, which also features forms of legal pluralism, has not disappeared. But it coexists with the legal methods and solutions applied in the international or European context. The process of operating international law in a context of global legal pluralism is distinctive. The law applied develops, in a variety of global legal situations, its own dynamism. It cannot result from the mere operation of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. For one situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in or on one or more spaces or levels, by one actor or by multiple actors.

When approaching the question of how to operate the law in the national, international and European context, the lawyer may choose to place him or herself prior to the application of international law to try to develop legal constructs that may allow them to face the difficulties raised by global legal pluralism. Legitimate and admissible as it may be, this approach is not the one that underpins this article. Two principal reasons motivated this choice. The first reason is particular to the phenomenon studied. The treatment by the lawyer of the, ever more frequent, situations in which several laws formulated in a national, international (UN, WTO, WIPO, ILO, WHO, ICJ, PCA, ICSID, International Criminal Court) or European (EU, ECHR) environment may be applied together to a given case, has developed considerably over the last thirty years. Without being entirely novel, this phenomenon has incontestably attained previously unequalled amplitude. Have we, as lawyers, fully grasped the importance of this development? Do we know, if not all, at least the principal situations that give rise to this applied global legal pluralism? An effort of description is an indispensable prelude to any conceptual analysis of the phenomenon of global legal pluralism. This, in any case, is our hypothesis.

The second reason, which has driven us to prioritise a practical analysis, relates to the observation that, in spite of the considerable efforts deployed by applied global legal thought to address the transformations of the world in which it is evolving, the operation of the (international) law in a global context remains, to this day, unamenable to any general and abstract explanation. Although this may change in the future, we do not see and, to tell the truth, we do not believe in the emergence of any analysis--a theory for example--which will allow all global legal actors to grasp, through the (no doubt limited) methods and solutions already posed, the variety of cases of applied global legal pluralism.

In order to do so, we must tackle the many difficulties the lawyer faces when applying these methods and solutions. This reversal (or to put it more modestly, this shift) can be achieved principally by reference to 'objects of law'. This is clearly the route taken by one research centre (4): global law has the potential to give rise to unidentified legal objects' (ULO) that the lawyer tries to explain by using a 'pragmatic approach' which allows them to grasp them as they are, without passing through the preliminary definitions of the type used by those who use an 'apriori' approach.

We have chosen another manner of taking an 'a posteriori approach' to applied global legal pluralism. We propose to focus on the work of the lawyer when they apply international law in different national, international and European contexts. How does the lawyer use the law when they are confronted with these different contexts? How does this plurality of contexts affect their manner of applying the law?

This lawyer could take a variety of different forms. We could limit our scope to the figure of the judge, master of the interpretation of the law, or think of legal academics, the defenders of scholarly law, or single out, for example, the family of lawyers in a national country, the community of lawyers working within a European institution or, finally, those lawyers who operate within global structures.

All of these definitions are acceptable. What matters is the practice of law by the lawyer, which is to say, their pursuit of a result. Whether they work independently (a barrister, a consultant, a magistrate, a solicitor, a professor) or under the authority of a public institution (administration) or is subordinate to a private body (non-governmental organisation, company, union, association), they are most often (which is not to say always) guided by the pursuit of a goal: the formulation of a rule, a decision, an argument, an analysis and even of a theory (be it the 'purest' or most objective one), etc.

This eternal quest for a result by the lawyer is largely conditioned by the context--national, international or European--in which they apply international law. The expression 'national, international and European context' refers to the legal environment in which the lawyer approaches a case.

This environment may be essentially permeated by national law. This is the lot of the vast majority of lawyers who work in a purely domestic context. But it is also the lot of the international private lawyer when they apply a national law or refer to a state judge designated by a connecting rule. This internal law applied by the lawyer is not only composed of hard law, deliberately formulated, or 'laws' in the legalistic sense of the word. We can also find in it the trace of revelatory law, spontaneous law or soft law, for example. The international context concerns the lawyer's application of legal methods and solutions of an international dimension. This is the lot of international lawyers, public or private, when they put in motion legal mechanisms adapted to international situations. These mechanisms can have a formal international dimension (an international treaty, an international custom, a procedure before an international court). They can also have a material international dimension (for example, a national law destined to apply specifically to international situations: rules of conflicts of law or of jurisdictions, substantially international material rules such as, for example, a French legal rule of international public order, etc.). This applied international law sometimes has a transnational dimension. It is not the fruit of the labour of states but results from the practice of non-state actors in resolving specific situations.

The European context concerns the lawyer's application of a law formulated in a legal environment with a European dimension. Two large European organisations aim to create law in this way: the European Union and the Council of Europe (with, under the auspices of the second organisation, the unique position occupied by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its court, the European Court of Human Rights (ECtHR)). The European judge who applies European law every day (which can take the shape of any of the forms of law indicated further above) is thus immersed in the jurisdiction of a law which often asserts itself through its (relative) originality compared to the constructs defined in the national and international context.

These three contexts are evidently not isolated from one another and the lawyer can, through a simple trick of the mind, pass from one context to another, as certain actors occupy wholly ambivalent positions (5). But they do exist in themselves. Each has its own legal language, its rationality, its institutional or material tools.

Now applied global legal pluralism allows us to pose the question of how the lawyer can apply...

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