“DEBACLES – Illusions and Failures in the History of International Adjudication”

24 November 2016
25 November 2016

Piranesi - View of the Temple of Minerva Medica, 1748-1774
Piranesi - View of the Temple of Minerva Medica, 1748-1774

Encouraged by the post-Cold War rise of international adjudication, most international lawyers have focused their attention on judicial ‘success stories’. They have thereby revitalised a liberal-modernist narrative that views the constant expansion and improvement of international adjudication as historically ineluctable. Against this backdrop, the DEBACLES project, inaugurated at the Max Planck Institute for Procedural Law in 2015, aims to cast an unconventional light on the history of international adjudication, bringing to the foreground its many illusions and failures, the paths not taken, and, more generally, the nonlinearity of its developments.

The present conference, which marks an important milestone, will engage with specific failed attempts to create and operate international judicial forums, as well as with broader historical and theoretical issues related to such failures. First among these is the clarification of the very concept of ‘failure’ and the identification of its subjective and objective dimensions. The conference will offer a rich inventory of cases of failure arranged in four thematic sessions on — respectively — human rights, international economic law, regional international organisations, and international criminal law. Prominent and outwardly thriving institutions — including the International Court of Justice, the Court of Justice of the European Union and the International Centre for Settlement of Investment Disputes (ICSID) — are examined along with lesser-known or almost forgotten ones, like the International Loans Tribunal and other dead letter courts. One may see, in the choice to take a closer look at cases of failure, an attempt to draw lessons from past setbacks with a view to the progressive advancement and further expansion of international adjudication. The analyses we offer may of course be put to such use, although the project’s main purpose is, rather, to develop a dispassionate critique of the practice of international adjudication itself, its ideological underpinnings most notably as reflected in its historiography, and its structural limits.


24 November 2016

09:00 Registration

09:15 Introductory Remarks

09:30 I. THEORY

Chair: Prof. Moshe Hirsch

Dr Luca Pasquet | Failure as Disappointment
Prof. Paula Wojcikiewicz Almeida and Prof. Serena Forlati | Is Non-compliance with Judgments a Failure of International Adjudication?
Dr Wim Muller | International Adjudication Against Great Powers: Destined for Failure? The Nicaragua, Arctic Sunrise, and South China Sea Cases from the Point of View of Power Asymmetry

Q&A session

11:00 Coffee Break


Chair: Prof. Bardo Fassbender

Prof. Ingo Venzke | An Extended Critique of International Adjudication: The Illusion of Necessity and the Failure of Imagination
Prof. Ignacio De la Rasilla y del Moral | Why a Story of Dead Letter International Courts and Tribunals Today?
Daniel Litwin | How the Story of International Adjudication Has Been Told: The Linear Sensibility of International Adjudication Historiography

Q&A session

13:00 Lunch


Chair: Prof. Jarna Petman

Michel Erpelding | Failure by Oblivion: The Invisible Legacy of the Upper Silesian Mixed Commission
Dr Nicolas Kang-Riou | The European Social Charter Collective Complaint Mechanism: From Limited Success to Failure
Dr Olivier Barsalou | The International Court of Justice, Cold War Politics, and the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Case: A Human Rights Debacle?
Dr Athanasios Chouliaras | The Development of State Responsibility for Serious Violations of Human Rights and the Dubious Role of the International Court of Justice
Dalia Palombo | Human Rights Adjudication: Between Hope and Debacle

Q&A session

16:45 Coffee break


Chair: Prof. Hélène Ruiz Fabri

Prof. Emanuel Castellarin | The International Loans Tribunal That Never Was
Prof. Nikitas E. Hatzimihail | Of Debacles and Crises: ‘De-colonisation’ Meets Investment Arbitration in the Cold War Middle East
Ksenia Polonskaya | Does the ICSID Suffer from a Genetic Disease?
Yuliya Chernykh | Fold Down Umbrellas! The Debacle of the Umbrella Clause in Investment Arbitration

Q&A session

19:00 Dinner Cocktail

25 November 2016


Chair: Prof. Antoine Vauchez

Prof. Henri de Waele | Not All That Glitters is Gold: Covert Failings of the Court of Justice of the European Union
Prof. Freya Baetens | The Triumph of Hope over Experience? Illusions and Failures of Successive Central American Courts of Justice
André Nunes Chaib | Why Courts Fail in Latin America? Constitutionalist Imaginary at the Heart of Latin American Jurisdictional Projects
Mariana Pena-Pinon | The Fiasco of the Mercosur's Advisory Opinion Mechanism

10:15 Coffee Break


Prof. Konstantinos D. Magliveras | When Politics Prevail over the Rule of Law: The Unfortunate Story of the SADC Tribunal
Evelyn Mogere | The Judicial Institutions of the East African Community (1967-1977): A Tale of Three Failures

Q&A session

12:15 Lunch


Chair: Prof. Ilias Bantekas

Dr Heejin Kim | Ending a Culture of Impunity: A History of the Use of International Judicial Means for the Punishment of Atrocity Crimes in Asia
Prof.  Patrycja Grzebyk | Hidden in the Glare of the Nuremberg Trial: The Impunity for the ‘Butchery of Wola’ as the Greatest Debacle of Post-war Prosecution of International Crimes
Dr Luigi Prosperi | The Missed Italian Nuremberg: The History of an Internationally-sponsored Amnesty
Prof. Sergey Vasiliev | Debacles of International Criminal Adjudication: Deliberation Practices and Lessons Unlearned
Dr Di Gore Simmala | African Challenges to the Legitimacy of the International Criminal Court: Is International Criminal Justice Facing Breakdown?

15:00 Coffee Break


Yael Vias Gvirsman | What International Criminal Justice Cannot Do: The Limited Roles of International Criminal Courts and Tribunals in Conflict Resolution
Prof. Gabriele Della Morte | The Failure of the Discourse About the Failure of International Criminal Law

Q&A session

17:00 Concluding Remarks

17:30 Closure

To download the programme of the event, please click here.

To download the poster of the event, please click here.

If you are interested in participating in this international conference, please contact:
Martina Winkel: (+352) 26 94 88 923, events@mpi.lu

Max Planck Institute Luxembourg
Conference room, 4th floor
4, rue Alphonse Weicker
L-2721 Luxembourg