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

24 & 25 November 2016

On 24-25 November 2016, the Max Planck Institute Luxembourg for Procedural Law hosted the Conference “DEBACLES – Illusions and Failures in the History of International Adjudication”, a milestone of the research project on failed international courts and tribunals currently pursued in the Department of International Law and Dispute Resolution.

Against the backdrop of the post-Cold War rise of international adjudication, the DEBACLES project, inaugurated 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.

During the two-day conference, 27 speakers took the floor under the chairmanship of 6 renowned scholars. The speakers engaged 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 was the clarification of the very concept of ‘failure’ and the identification of its subjective and objective dimensions. The conference offered a rich inventory of cases of failure arranged in two methodological panels (History and Theory) and four thematic panels 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) — were examined along with lesser-known or almost forgotten ones.

In the Theory panel, chaired by Prof. Moshe Hirsh, Dr Luca Pasquet discussed the multifaceted concept of failure using the heuristics of disappointment. Professors Paula Wojcikiewicz Almeida and Serena Forlati tackled the question whether and to what extent non-compliance with judgments may be counted as a failure of International adjudication. Dr Wim Muller talked about claims brought against Great Powers, in particular the Nicaragua, the Arctic Sunrise, and the South China Sea cases the, and assessed the evidence according to which these cases seem destined for failure.

In the History panel, chaired by Prof. Bardo Fassbender, Prof. Ingo Venzke developed a critique of international adjudication, casting it between the illusion of necessity and the failure of imagination. Prof. Ignacio De la Rasilla y del Moral made the case for studying more closely dead letter international courts and tribunals. Daniel Litwin diagnosed the “linear sensibility” affecting much of the historiography on international adjudication.

In the Human Rights session, chaired by Prof. Jarna Petman, Michel Erpelding talked about a case of failure by oblivion, that of the Upper Silesian Mixed Commission and its remarkable but almost forgotten legacy in the field of human rights protection by judicial means. Dr Nicolas Kang-Riou assessed the performance of the European Social Charter Collective Complaint Mechanism and saw in it a downward trend, from limited success to failure. Dr Olivier Barsalou went to the root causes of the limited development of the international human rights protection during the Cold War, watching them through the lens of the International Court of Justice’s decision in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania case. Dr Athanasios Chouliaras examined and criticized the ICJ’s case law on state responsibility for serious violations of human rights. Dalia Palombo discussed human rights adjudication’s recent history, current situation and future prospects.

In the International Economic Law panel, chaired by Prof. Hélène Ruiz Fabri, Prof. Emanuel Castellarin told the story of forgotten International Loans Tribunal. Prof. Nikitas E. Hatzimihail put the spotlight on the contradictions of investment arbitration in the Cold War Middle East. Ksenia Polonskaya showed in what sense the ICSID may be said to suffer from a genetic disease. Yuliya Chernykh explained the causes of the decline of the so called “umbrella clauses” in investment arbitration.

In the Regional Integration Organisations panel, chaired by Prof. Antoine Vauchez, Prof. Henri de Waele examined the covert failings of the Court of Justice of the European Union. Prof. Freya Baetens provided a historical overview of the failures of the successive Central American Courts of Justice, describing them as a triumph of hope over experience. André Nunes Chaib delved deeper into the constitutionalist imaginary fraught with contradiction that lies at the heart of Latin American post-national jurisdictional projects. Mariana Pena-Pinon focused on the fiasco of the Mercosur's advisory opinion mechanism. Moving to Africa, Prof. Konstantinos D. Magliveras recounted the legal and political factors explaining the backlash against the SADC Tribunal. Evelyn Mogere told a tale of three failures, those of the Judicial Institutions of the East African Community between 1967 and 1977.

In the International Criminal Law panel, chaired by Prof. Ilias Bantekas, Dr Heejin Kim reported on the history of the use, or non-use, of international judicial means for the punishment of atrocity crimes in Asia. Prof. Patrycja Grzebyk told the arresting story of the ‘Butchery of Wola’ and of how it was hidden in the glare of the Nuremberg Trial. Dr Luigi Prosperi talked about the missed “Italian Nuremberg”, the story of an internationally-sponsored amnesty. Prof. Sergey Vasiliev dealt with contemporary failings of international court and tribunals, focusing on weaknesses in the deliberation practices. Yael Vias Gvirsman addressed the question as to whether and to what extent international criminal courts and tribunals may play a role in conflict resolution. Prof. Gabriele Della Morte critically examined the contemporary critical literature on the international criminal justice project.

Panels were invariably followed by exuberant Q&A sessions spilling over into coffee and lunch breaks discussions. The publication of the conference proceedings, supplemented by further contributions, is expected by the end of 2017.

For the picture gallery of the conference, please click here.