Читать книгу Suppression Of Terrorist Financing - Hamed Tofangsaz - Страница 6
ОглавлениеAlthough terrorism is not a new phenomenon,1 since the end of World War II, there has been widespread concern over the “intensity and urgency” of attacks on civilians or civilian property, carried out with the purpose of frightening ordinary people or states or international organizations into acting in a particular way or desisting from action.2 To deal with this phenomenon called terrorism, the United Nations has created a global system of counterterrorism treaties. The aims of these treaties are to target specific threats such as hostage taking3 or hijacking4 regarded as terrorist acts without defining or applying the term terrorism.5 Using the traditional principles of criminal law, these treaties consist of a set of provisions defining the offenses sanctioned by these treaties.
The only exception to this approach is the adoption of the International Convention for the Suppression of the Financing of Terrorism (hereinafter the Terrorist Financing Convention).6 The Convention requires the criminalization of terrorist financing as an independent offense in spite of the facts that such criminalization requires an agreement on a generic definition of terrorism, the financing of which should be criminalized, and in spite of whether traditional criminal law can accommodate terrorist financing, a preparatory conduct dealt with by the law of complicity or inchoate offenses, as an independent offense.
The introduction of the Terrorist Financing Convention should be regarded as a shift to a preemptive approach adopted by some Western liberal States in their domestic law to “criminalizing acts that have never happened to deal with threats that are not yet and may never be.”7 Advocating the necessity of a shift to this approach in “the war on terror,” the former U.S. president, George W. Bush argued that
for much of the last century, America’s defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence, the promise of massive retaliation against nations, means nothing against shadowy terrorist networks with no nation or citizens to defend. . . . If we wait for threats to fully materialize, we will have waited too long. . . . We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.8
This argument was a driving factor in the formulation of the Terrorist Financing Convention proposed a few years before September 2001 by some of the Western States which intended to internationalize the use of a preemptive approach in the fight against terrorism. As will be explored, a call for the adoption of measures to counter terrorist financing was officially issued in G7/8 ministerial meetings in 1995.9 In 1999, a draft of a convention on terrorist financing, a French initiative at a G8 summit,10 was proposed to the United Nations.11 The draft regarded terrorist financing as “a matter of grave concern to the international community,”12 which it thought needed to be tackled independently. After two weeks of negotiations, the Terrorist Financing Convention was adopted by consensus and the offense of terrorist financing was introduced as an autonomous offense. However, until September 2001, only four states had ratified the Convention. The Convention now has 132 signatories and 188 parties.
The 9/11 attacks, nevertheless, created an opportunity for pushing through this preemptive approach reflected in Terrorist Financing Convention, but it was never welcomed by most states. Therefore, substantial efforts have been taken to assure that this approach is adopted by states in the fight against terrorist financing. The Financial Action Task Force (hereinafter the FATF), an intergovernmental body established by the G7/8 in 1989 to counter money laundering, agreed to set out specific recommendations for dealing with terrorist financing.13
Since 2001, the United Nations Security Council has also been dealing with the issue of terrorist financing by adopting some quasi-criminal law measures. Assuming that terrorism is closely and heavily connected to criminal (organized) activities, these international organizations (the United Nations, the FATF, and the UN Security Council) created and perpetuated a regime of measures to counter terrorist financing. This regime, relying on a preemptive approach, provides two types of preventive measures:
(a) Financial measures: Emphasizing a risk-based approach, these preventive measures center on the role of financial institutions in preventing terrorist financing from occurring in the first place. These measures will not be discussed by this book.
(b) Penal measures: These aim at the enforcement of the criminal law in relation to the acts of financing of terrorism. The two main penal legal devices used in the fight against terrorist financing are criminalization of financing terrorism and the freezing and confiscation of terrorist funds.
There has been a great deal of analysis of the effectiveness of domestic measures against terrorist financing, but not of the international regime created by the Convention itself. This book will only examine the penal (criminalization and confiscation) measures closely and exhaustively.
The Notion Underpinning the Penal Measures
Under the Convention (and the guidance of the FATF’s recommendations), states are asked to criminalize terrorist financing and confiscate terrorist funds without a link to, or the existence of, a terrorist act.14 The underlying idea on which this preemptive approach is based is that, because terrorism is a serious offense which relies heavily on the funds derived from criminal (organized) activities, it should be tackled at a very early stage before it is actualized. This seems to be the main justification for the enactment of a wide range of terrorism-related offenses, including terrorist financing, which criminalize preparatory conduct, as a stand-alone offense, even in the absence of the connection between the alleged preparatory conduct and terrorist activities.
However, in the absence of such a connection, the main difficulty is identifying the origin of the criminality of the impugned conduct. As will be discovered, the offense, in its current formulated form, relies heavily on its mental element to remedy this ambiguity; that is, it is the mental element of a terrorist financing offender, which is the basis of the imposition of criminal liability or confiscation sanctions.15 This approach has expanded the boundary of the criminal law to enable it to include activities and associations that are not normally criminalized as independent offenses under conventional criminal law, due to their preparatory nature or because the connection to the possible subsequent offenses for which they are carried out is vague.
As explained, the adoption of this approach by Terrorist Financing Convention, FATF, and the UN Security Council has been defended on the grounds of the heinous and catastrophic effects of terrorist attacks. In other words, the counterterrorist financing measures’ purpose is to prevent terrorist attacks preemptively by disturbing and dismantling the financial capabilities of terrorists, terrorist groups, and their supporters long before their resources turn into catastrophes. There is no doubt that law should be used not only to deal with harmful and wrongful conduct such as terrorism, but also with conduct that falls short of causing actual harms but contributes to or facilitates the commission of potential terrorist attacks. Indeed, criminalization of attempts is a well-rationalized subject of criminal law which has its own rules and boundaries. As Antony Duff argues, “A law that condemned and punished actually harm-causing conduct as wrong, but was utterly silent on attempts to cause such harms and on reckless risk-taking with respect to such harms, would speak with a strange moral voice.”16 But the question is how far criminal law can (or should) be stretched to fulfill this task? Does criminalizing terrorist financing, which fits neatly into the category of the law of attempt or inchoate offense, as an independent offense without a link to any terrorist act push criminal law beyond its limits?
The purposes of this book are to examine the justifiability of the adoption and development of this approach to criminalizing terrorist financing and confiscating terrorist funds as well as identifying the legal issues and challenges that arise from its implementation. It should be noted that the purpose is neither to question the basic need for countering terrorist financing nor to provide a lesson in the arcane history of the laws on terrorism; instead, it is to draw attention to the actual and potential dangers which may be inherent in counterterrorist financing measures. In addition, the book will not examine whether the regime has been effective in terms of cutting off terrorists’ funds; instead, it will examine whether it has been based on a theoretically and conceptually correct foundation in such a way that these laws’ implementation does not harm (innocent) citizens, violate their rights, or pervert the criminal law.
Research Questions
To achieve the purpose defined above, the book will seek to answer the following questions:
1. What is terrorist financing? And how has it been conceptualized?
2. What is the basis of criminal liability when there is no connection between financing and any criminal (terrorist) activity? Does the terrorist financing offense extend criminal liability based on mens rea vaguely and unjustifiably?
3. Are the criminalization and confiscation of terrorist financing in the way that international treaties have been adopted and diffused understandable, justifiable, and consistent with the accepted principles of criminal law and the principle of legality?
Hypotheses
The main hypothesis of the book is that this extension is untenable in terms of existing principles of criminal law. This breaks down into the following arguments:
1. A distinctive effort has been forthcoming from the international community to push the idea that terrorism and organized crimes are closely connected, so an approach similar to that taken to counter organized crimes and money laundering can be taken to address terrorist financing. It is the submission of the book that the counterterrorist financing regime which relies on this idea is fundamentally flawed partly because basic facts about the nature and characteristics of terrorist financing have been ignored.
2. Criminalization of terrorist financing as an independent offense, in the way drafted in the Terrorist Financing Convention and diffused by the UN Security Council and FATF, stretches out the boundaries of criminal liability beyond the principles of criminal law and beyond the limits of the law of attempts or the law of inchoate offenses which deal with preoperatory offenses. Such a poorly defined and vague offense can result, as will be explored, in massive variations in its application (criminalization and confiscation), in the violation of rule of law (specially the principle of legality) and of some of criminal law principles.
3. The incorrect conceptualization and criminalization of terrorist financing pave the way for the inaccurate use of freezing and confiscation tools. Obviously, the aim of freezing or confiscation is to enhance the effectiveness of criminal justice systems in the fight against any type of profit-driven (or high cost attempted) crime. However, the appropriateness of the asset-freezing and confiscation measures defined under the terrorist financing regime in the fight against terrorist financing, where the money might not be the fruit of crime or not connected to any terrorist act, can be challenged in the light of human rights limitations. This may also challenge the asset-freezing regime adopted and developed by the UN Security Council, which can be argued as insufficient to address these human rights concerns.
Vagueness and the Rule of Law
Based on the “traditional understanding of the rule of law doctrine,”17 this book claims that the penal measures on terrorist financing are unjustifiably vague and therefore in contradiction with the rule of law. Under this thesis, a law is vague when it fails to offer “guidance as to what the law is in relation to particular issues”;18 vague laws grant discretion “without standards for its exercise,”19 or without access to any “methodological tools” for its interpretation.20 Standards or methodological tools may “be available outside a law e.g. on the basis of general principles.”21 Sometimes, the context of a law determines its meaning and application.22 Therefore, a law is not vague if the law takes an open form, but at the same time its “context” can be determined by existing standards and methodological tools, or by reference to its context. For example, the law that requires driving “reasonably” is not vague,23 although it has an open form, if the law offers “a definite interpretation of the word reasonable,”24 or provides guidance on how its vague form shall be filled, that is “how discretion is to be applied.”25
The terrorist financing penal measures, however, do not fall within any of these exceptions. They pose two types of vagueness in the sense defined above (granting discretion without offering methods and standards for their exercises): “structural vagueness” which refers to the vagueness of the structure of the terrorist financing offense under which it is not clear and determinable, when there is no terrorist act planned, attempted, or committed, where the criminality of financing activities can be derived from. Although the offense relies on the mental state of the accused in imposing criminal liability, in the absence of the existence or preparation of a terrorist act, what a financer should know or intend to be held criminally liable is not specified. Even if one finds a meaning for it, as will be argued in chapters 6 and 7, such an approach to criminalization is unjustifiable in terms of existing principles of criminal law, as will be discussed in chapter 8.
This structural vagueness also leads to confusion over the certainty and determinacy of the meaning and application of each elements of the offense. This vagueness is called by this book “definitional vagueness.” For example, as chapter 5 points out, it is not clear, in the absence of a connection between financing or funds and a terrorist act, whether and how providing legal advice to a terrorist group constitutes the terrorist financing offense.
The jurisprudential question is if vague law is permissible. This is a very controversial topic of jurisprudence and it is beyond the scope of this research to include a comprehensive discussion on this jurisprudential matter. But it is important to clarify the stance of the book on this matter.
This book rejects any arguments seeking to establish and justify a relationship between vagueness and the rule of law.26 In fact, a law cannot be made vaguely. Any vague law is inconsistent with the underlying values of the rule of law, especially those of legal certainty explained below. “Dismissing the notion of legal certainty would . . . affect the rule of law doctrine at its core and nobody has convincingly explained why and how this could be justifiable.”27
Defining the minimum requirements of acceptable and genuine laws, Lon L. Fuller regards legal certainty as “one of the most essential ingredients of the rule of law,”28 which embodies the “absolute supremacy of predominance of regular law.”29 Fuller argues that failing to comply with any of the underlying values of the rule of law, including legal certainty, “does not simply result in a bad system of law; it results in something that is not properly called a legal system at all.”30
Legal certainty requires law to comply with some legal values such as “predictability, learnability of law, fair notice, the dignity and efficiency of citizen self-direction under law, equality before the law, [and] freedom from official arbitrariness.”31 In other words, legal certainty requires:
1. The conceptual content of a law be “specific and immediately intelligible”32; thus, “those subject to the law must know what the law is so that they can abide by it and plan their lives accordingly.”33
2. A law must be “factually realisable”34 in the sense that the facts on which it turns “are easily and readily determinable.”35 It should “exclude other substantive considerations that could operate at point of application.”36
3. A law should not call upon citizens to make judgment on their own as to what law may forbid or permits. “Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than [they would] if the boundaries of the forbidden areas were clearly marked.”37
4. A law should accord citizens “the dignity and efficiency of self-direction without official intervention”;38 such official intervention “would diminish the dignity and efficiency of citizen self-direction under law.” The concept of legal certainty is strongly linked to the main notion of the liberal jurisprudence according to which people should be able to predict the consequences of their action and therefore maximize their freedom of choice.
5. A law should promise equality before the law and still more freedom from official arbitrariness by reducing “the opportunities for officials to treat similar cases differently.”39
The book also rejects the position of those who attempt to bypass the-rule-of-law issue of vague laws by arguing that certain degrees of vagueness or certain degrees of certainty within vague law are permissible.40 As Lutz-Christian Wolff points out:
[t]he reference to degrees of flexibility [or vagueness] is, however, misleading. This is because the relationship between legal certainty and flexibility is a mutually exclusive one. Either there is legal certainty or there is rule-inherent flexibility. It is logically impossible to allow both at the same time, as legal certainty will necessarily disappear with the introduction of the tiniest element of flexibility. Moreover, allowing degrees of flexibility would in practice require the quantification of those degrees of flexibility that are allowable. And such quantification would be practically impossible. It also follows that the often quoted tension between flexibility and legal certainty does simply not exist. In fact, it cannot exist. Legal rules are either flexible [vague] or they provide for legal certainty. Rule-inherent flexibility is nothing else but an oxymoron.41
Wolff elsewhere argues that “the requirement of legal certainty is absolute and does not allow bits of it to be sacrificed without giving up the concept altogether. In other words, legal certainty with some flexibility is not possible. It is either all or nothing.”42
Relying on the jurisprudential basis set out here, the book will test the penal measures on terrorist financing against the underlying values of the rule of law, especially those of legal certainty mentioned above. The discrepancies between these measures and the values of rule of law will be regarded as shortfalls of the counterterrorist financing regime and consequently unjustifiable.
Outline of the Book
This book consists of twelve chapters. The first three chapters are concerned with the background to the issue of terrorist financing. Chapter 1 explores the nature and characteristics of terrorist financing, terrorists’ and terrorist groups’ needs, and the way their needs are met and their activities are funded. The exploration of how terrorists meet these needs provides a footing for the examination, in the rest of the book, of the credibility and reliability of the concept that underpins the expansive approach and broad legal measures taken to counter terrorist financing, with a very tenuous link to actual acts of terrorism.
Chapter 2 examines in detail the background of Terrorist Financing Convention, the ideas on which the Convention was drafted and the nature of the negotiation discussions which led to its adoption. This entails an examination of how the drafters of the Convention encountered two main challenges: first, how to define terrorism, terrorist acts, terrorist purposes, and terrorist groups, the financing of which would be criminalized; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. Chapter 3 examines the FATF’s recommendation that terrorist financing should be criminalized as a predicate offense of money laundering. The FATF is of the opinion that due to the link and nexus between terrorism and organized crime, terrorist financing can be adequately targeted under already existing measures (anti-money laundering measures) established to prevent the financial aspect of (organized) criminal activities. This chapter will assess whether it is reasonable to legislate to prevent terrorist financing on the basis of analogies with money laundering.43
The following three chapters that make up the central part of the book scrutinize the elements of the introduced offense in great detail, engaging in a critique of its foundational elements. Chapter 4 examines the definition of terrorism, terrorist, and terrorist group. The main question it confronts is whether the counterterrorism financing regime provides a solid platform for a better understanding of what is terrorism, a terrorist act or a terrorist group financing of which is the subject matter. Chapter 5 will explore the actus reus of the offense, which consists of the collection and provision of funds. It will examine a very important question: when there is no connection between acts of financing or funds and an actual (or planned) terrorist act, whether (and if at all) and how, the actus reus of the offense should be interpreted in order for its criminalization to be justified.
Chapters 6 and 7 illustrate the key role of the mental element of the offense of financing terrorist acts defined by the Convention, FATF, and the UN Security Council in imposing liability. They will discuss that the heavy reliance on poorly defined and ambiguous fault elements (knowledge and intention) without linking to any (planned) terrorist act undermines the case for principled criminalization.
Chapter 8 discusses the important question of how such criminalization has gone wrong. It examines the justifiability of the terrorist financing offense with regard to the principles and values that liberal criminal law is based on. The values of liberal criminal law are used as a yardstick because, as explained, the idea of criminalization of terrorist financing was proposed and developed mainly by Western liberal States. The diffusion of these criminalization measures has been overwhelmingly supported by those states or by the intergovernmental or international organizations backed by those states. It is apt, therefore, to engage in a normative analysis of this offense against the values said to underpin liberal criminal law. For purposes of convenience, the chapter limits the scope of discussion of the issue to the context of Anglo-American criminal law.
The rest of the book examines other penal measures adopted and developed, as a result of obligations to Terrorist Financing Convention, to freeze and confiscate terrorist funds. It will also examine the UN Security Council’s resolutions which deal with freezing terrorist funds. The underlying question is, in the presence of so many ambiguities in the definition of the terrorist financing offense, whether and how funds or property, suspected to be linked to terrorism, can be frozen or confiscated.
In order to understand the complexity and function of modern forfeiture law, special attention needs to be devoted to the history of English law which has had a significant influence on the existing (now being globalized) laws on confiscation. For this reason, chapter 9 looks briefly at the historical concepts on which modern forfeiture laws are based. It argues that the basis of current forfeiture laws is unfortunate reconstruction of some long abolished ancient concepts.
Chapters 10 and 11 will discuss the human rights issues that arise from the adoption and implementation of seizure and confiscation provisions in the context of the European Union (EU). The EU and some of its Member States’ approach toward seizure and confiscation of terrorist funds is used as a case study because the EU, as a value-based or human rights-based community, appears to have a strong commitment to fight against terrorism while maintaining fundamental principles, such as respect for the rule of law, good governance, fundamental freedoms, and promoting human rights and democratic values. In addition, many of the EU’s Member States have supported and are still supporting the creation and diffusion of the counterterrorist financing regime.
Chapter 12 will examine the response of another regional community to the terrorist financing measures, namely the Association of Southeast Asian Nations (ASEAN). It does not examine why ASEAN or its Member States adopted and implemented the measures in a certain way, nor does it analyze the political or legal factors that shape their response to the measures. The main purpose in this chapter is to investigate and identify the possible problems that may arise from the application of the counterterrorist financing measures introduced by the Convention, and diffused by FATF and its Western states’ supporters in a non-Western environment.
Methodology
This book is a critical conceptual analysis of international and domestic laws on the criminalization of terrorist financing and confiscation and seizure of terrorist funds. It belongs to the category of analytical research as it is involved in identifying and analyzing facts about terrorist financing (chapters 1 and 3), clarifying the law on terrorist financing (chapters 2 and 9), and determining human rights issues arising from its implementation (chapters 4–7 and 9–12). This is carried out “by a distinctive mode of analysis to authoritative texts that consist of primary and secondary sources,”44 and by understanding of rules and principles governing criminal liability, and by adopting “reasoning methods borrowing from philosophy and logic.”45
The book also engages in the interpretation of international law and recommendations on terrorist financing. This interpretation is, of course, limited by the rules of interpretation provided by the Vienna Convention on the Law of Treaties 1969. Article 31 of this convention states that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The book heavily relies on the supplementary means of the interpretation indicated by Article 32 of the Vienna Convention;46 in particular, the book reviews the preparatory work of, and negotiations and discussion made by the State Parties on, the drafts of the Terrorist Financing Convention in order to determine the meaning of provisions at issue.
In addition, to show how the counterterrorist financing regime has been diffused, the book examines states’ and regional parties’ subsequent practice when implementing the Convention particularly through the FATF and the Security Council as an interpretive tool. It specifically examines the approach of two influential regional communities, namely EU and ASEAN, to the adoption and implementation of the counterterrorist financing measures (chapters 9–12). As mentioned, the EU has been chosen because it is a value-based community which has a significant emphasis on the human rights and democratic values not only within the Europe but also in its dialogue with other states or regional communities. ASEAN has been chosen because its members are often accused of being authoritarian and not being in compliance with the human rights.
Finally, the book also relies on the scholarly literature in interpreting the counterterrorist financing measures and particularly the discussions on the conceptual underpinnings of criminalization of the terrorist financing as an independent offense. It examines the justifiability of these underpinnings with regard to the principles of liberal criminal law as recognized in Anglo-American states (chapter 8).
NOTES
1. See Gérard Chaliand and Arnaud Blin, The History of Terrorism: From Antiquity to al Qaeda (University of California Press, Berkeley, 2007).
2. Micheline Calmy-Rey in Mark Pieth, Daniel Thelesklaf, and Radha Ivory, Countering Terrorist Financing: The Practitioner’s Point of View (Peter Lang, Bern, 2009), p. vii.
3. UN International Convention against the Taking of Hostages (New York, December 17, 1979).
4. UN Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, December 16, 1970).
5. Although the term “terrorist” is used in the title of the convention on bombings, the term terrorist bombing is not used anywhere in the text. See UN International Convention for the Suppression of Terrorist Bombings (New York, December 15, 1997) (hereinafter the Terrorist Bombing Convention).
6. UN International Convention for the Suppression of the Financing of Terrorism (New York, December 9, 1999) (hereinafter the Terrorist Financing Convention).
7. J. McCulloch, “Precrime: Imagining Future Crime and a New Space for Criminology” in M. Segrave (ed) Conference Proceedings: Australian & New Zealand Critical Criminology Conference 2009 (Criminology, School of Political & Social Inquiry, Monash University, Australia), p. 151.
8. George W. Bush, “President Bush Delivers Graduation Speech at West Point” (June 1, 2002), <https://georgewbush-whitehouse.archives.gov/news/releases/2002/06/20020601-3.html>.
9. Foreign Affairs and International Trade, Ottawa Ministerial Declaration on Countering Terrorism: P-8 Ministerial Conference on Terrorism (Ottawa, Canada, December 12, 1995). See also U.S. Department of State, Ministerial Conference on Terrorism, Paris, France; July 30, 1996 (Paris, 1996). For more information about the role of the G8 in the fight against terrorism, see Andre Belelieu. “The G8 and Terrorism: What Role Can the G8 Play in the 21st Century?” (2002), <http://www.g8.utoronto.ca/governance/belelieu2002-gov8.pdf>.
10. Ministry of Foreign Affairs Japan, Foreign Ministers’ Progress Report: Denver Summit of the Eight (Tokyo, 1997).
11. UNGA, Letter Dated 3 November 1998 from the Permanent Representative of France to the United Nations Addressed to the Secretary-General (A/C.6/53/9, November 4, 1998).
12. The Terrorist Financing Convention, above n 6, Preamble.
13. Financial Action Task Force, FATF Guidance: Crimialising Terrorist Financing (Recommendation 5) (October 2016), para. 1.
14. See Article 2 of Terrorist Financing Convention. Financial Action Task Force, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (February 2012), p. 11.
15. Marja Lehto, Indirect Responsibility for Terrorist Acts: Redefinition of the Concept of Terrorism beyond Violent Acts (M. Nijhoff Publishers, Boston, 2009), p. xxxiv.
16. Antony Duff, “Perversions and Subversions of Criminal Law” in Antony Duff and others (eds) The Boundaries of the Criminal Law (Oxford University Press, 2010), p. 91.
17. Lutz-Christia Wolff, “Law and Flexibility—Rule of Law Limits of a Rhetorical Silver Bullet” 2011 11 Journal Jurisprudence 549, p. 559.
18. Ibid., p. 551.
19. P. S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Clarendon Press, Oxford, 1987), p. 74.
20. Wolff, above n 17, p. 556.
21. Ibid., p. 556.
22. Grayned v. City of Rockford (1972), 408 U.S. 104, p. 112. See also Boos v. Barry (1988), 485 U.S. 312, p. 332.
23. Robert S. Summers, “How Law Is Formal and Why It Matters” 1997 82(5) Cornell Law Review 1165, p. 1218.
24. Wolff, above n 17, p. 557.
25. Lutz-Christia Wolff, “Flexible Choice-of-Law Rules: Panacea or Oxymoron?” 2014 10(3) Journal of Private International Law 431, p. 434.
26. See, for example, H. L. A. Hart, The Concept of Law (Oxford University Press, London, 1972). See also Adam Gearey, Robert Jago, and Wayne Morrison, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions (Routledge-Cavendish, 2008).
27. Wolff, above n 17, p. 560.
28. Lon L. Fuller, The Morality of Law (Yale University Press, New Haven, CT, 1964), p. 63.
29. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th rev. ed., Liberty Fund Inc., 1982), p. 202.
30. Fuller, above n 28, p. 39.
31. Summers, above n 23, p. 1216.
32. Ibid., p. 1217. A U.S. court, in United States v. Williams (2008), 553 U.S. 285, 304, para.1846, held that a law is vague and therefore void when it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”
33. James R. Maxeiner, “Legal Certainty and Legal Methods: A European Alternative to American Legal Indeterminacy?” 2007 15(2) Tulane Journal of International and Comparative Law 541, p. 549. See also Takis Tridimas, The General Principles of EU Law (2nd ed., Oxford University Press, 2006), p. 242.
34. Robert S. Summers, The Jurisprudence of Law’s Form and Substance (Ashgate, Aldershot, 1999).
35. Summers, above n 23, p. 1217.
36. Ibid.
37. Grayned v. City of Rockford (1972), 408 U.S. 104, para. 109. See also Musser v. Utah (1948), 333 U.S. 95, para. 9.
38. Summers, above n 23, p. 1217.
39. Kolender v. Lawson (1983), 461 U.S. 352.
40. See, for example, M. O. Chibundu, “Globalizing the Rule of Law: Some Thoughts at and on the Periphery” 1999 7(1) diana Journal of Global Legal Studies 79. Symeon C. Symeonides, “The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons” 2008 82(5) Tulane Law Review 1741. Edoardo Vitta, “The Impact in Europe of the American ‘Conflicts Revolution’” 1982 30(1) American Journal of Comparative Law 1.
41. Wolff, above n 17, p. 562
42. Wolff, above n 25, p. 439.
43. This question has been also examined by Armand Kersten from a “methodological” perspective. See Armand Kersten, “Financing of Terrorism—A Predicate Offence to Money Laundering?” in Mark Pieth (ed) Financing Terrorism (Kluwer, Dordrecht, 2002), pp. 49–56.
44. Michael McConville and Wing Hong Chui, Research Methods for Law (Edinburgh University Press, Edinburgh, 2007), p. 4.
45. Terry Hutchinson, “The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law” 2015 8(3) Erasmus Law Review 130, p. 131.
46. Article 32 requires “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.”
