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Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals

Secondary Rules of Primary Importance in International Law: Attribution, Causality, Evidence, and Standards of Review in the Practice of International Courts and Tribunals

Author: Gábor Kajtár; Basak Çali; Marko Milanovic
Publisher: Oxford University Press
ISBN: 9780192869012
Published In: November 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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The focus of this edited volume is the often-overlooked importance of secondary rules of international law. Secondary rules of international law-such as attribution, causality, and the standard and burden of proof-have often been neglected in scholarly literature and have seen fragmented application in international legal practice. Yet the systemic nature of international law entails that coherent and consistent application of such rules is a key element in reinforcing the legitimacy of decisions of international courts and tribunals. Accelerated development of international law and international litigation, coupled with the fragmented nature of the adjudicatory terrain calls for theoretical scrutiny and systemic analysis of the developments in the judicial treatment of secondary rules.

This publication makes three important contributions to the study of secondary rules. First, it offers a comprehensive, expert doctrinal analysis of how standard of review, causation, evidentiary rules, and attribution operate in the case law of international courts or tribunals in fields spanning human rights, trade, investment, and humanitarian law. Second, it comparatively evaluates the divergent layers of meanings and normative expectations attached to secondary rules in international law scholarship as well as in the judicial practice of international courts and tribunals. Finally, the book investigates the role that secondary rules play in the development of the primary rules in international law and for the legitimacy of the decisions of international courts and tribunals.

Earlier scholarly works have not problematized the role of secondary rules of international law in adjudication thoroughly. Secondary Rules of Primary Importance in International Law seeks to fill this gap by emphasizing the consequential nature of these secondary rules and argues that the outcome of litigation is fundamentally shaped by the exact standard of proof, standard of review, or attribution basis that is chosen by adjudicators. As such, the book offers an important resource for the study and practice of international law against the backdrop of the wide-ranging and fragmented nature of international adjudication.

1:Introduction: Secondary Rules of Primary Importance

Gábor Kajtár, Basak Çali, and Marko Milanovic

Part 1 - Standard of Review in International Law

2:Explaining Variations in Standards of Review in International Adjudication

Eyal Benvenisti

3:Standards of Review in the Practice of International Courts and Tribunals

Vladyslav Lanovoy

4:Saving Regulatory Space for States through the Standard of Review: A Case Study of Tobacco control-related International Disputes

Lukasz Gruszczynski

5:Science, Legitimacy, and the Judicial Function: A Need for More Intrusive Standards of Review

Katalin Sulyok

Part 2 - Causation in International Law

6:A Missed Secondary Rulea Causation in the Breach of Preventive and Due Diligence Obligations?

Alice Ollino

7:Depolluting the Doctrine on Causation in International Investment Law: The Case for Extracting Legal Causation

Martin Jarrett

8:A Priori Causal Inferences in the Law of the World Trade Organization

Catherine E. Gascoigne

Part 3 - Evidentiary rules in International Law

9:Presumptions as Secondary Rules in the Judicial Interpretation of International Human Rights

Tilmann Altwicker and Alexandra Ellen Hansen

10:Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights

Basak Çali

11:The Evidentiary Implications of a Party s Non-Participation in the Proceedings

Christopher Lentz

Part 4 - Attribution in International Law

12:State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights

Marko Milanovic

13:A Comparison of the Rules of Attribution in the Law of State Responsibility, State Immunity, and Custom

Christina Binder and Stephan Wittich

14:Untangling the Relationship between Attribution and Due Diligence in Investment Law and Beyond

Jure Zrilic

15:Fragmentation of Attribution in International Law

Gábor Kajtár

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