CIAO DATE: 08/2011
Volume: 22, Issue: 2
May 2011
Editorial: 60 Years since the First European Community – Reflections on Political Messianism
he European construct has played a decisive role in the history of the last 60 years. It has created the framework for post-war reconstruction and has ingeniously provided the inspiration and mechanisms for a historical reconciliation between nations which hitherto had gone to war with each other – the horrors of which surpass even the worst of today's excesses – in every generation for the previous two centuries. This cannot but give inspiration and a sliver of hope in the face of our own intractable conflicts. The European Coal and Steel Community, the 60th Anniversary of which we mark this year, incorporated the Schuman Declaration and combined peace and prosperity in its blueprint, whereby peace was to breed prosperity and prosperity was to consolidate peace. It has all worked out splendidly – revisionist history notwithstanding. Europe has also been a catalyst (not more) – at times the ‘prize’ – for the achievement and subsequent consolidation of democracy, first in Greece, Spain and Portugal, and later across Eastern Europe.
Are Sovereigns Entitled to the Benefit of the International Rule of Law? An Introduction
Nehal Bhuta
In this symposium, we publish Jeremy Waldron's article, ‘Are Sovereigns Entitled to the Benefit of the Rule of Law?’ together with four responses, by Samantha Besson, David Dyzenhaus, Thomas Poole and Alexander Somek. Waldron is justifiably renowned as a jurisprude and theorist of the concept of the rule of law. His engagement with international law is more recent, but no less significant. In this article, he takes a familiar (perhaps even tired) question among international lawyers – can there be something akin to a rule of law in international affairs? – and recasts how we ought to think about it. With characteristically deft and plain-speaking arguments, Waldron burrows to the heart of the issue: What might it mean to speak of an ‘international rule of law,’ and who or what are properly understood as its beneficiaries? Waldron leads us first along a familiar path: the absence of a sovereign of sovereigns puts into …
Are Sovereigns Entitled to the Benefit of the International Rule of Law?
Jeremy Waldron
The applicability of the ideal we call ‘the Rule of Law’ (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the ‘true’ subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as ‘officials’ or ‘agencies’ of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.
A Bureaucratic Turn?
Alexander Somek
The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from ‘law’ to ‘process’ would raise serious concerns about what it might entail for the rights of citizens.
Sovereign Indignities: International Law as Public Law
Thomas Poole
Two analogies lie at the core of Professor Waldron's article. The first is the claim that the standard analogy by which the state in international law is like the individual in domestic law is misleading; the state in international law is more like a government agency in domestic law. The second is that international law is (or is like) a species of public law and should be treated as such by domestic legal systems. I examine both claims, arguing (a) that even if we accept the first analogy it does not get us to the deeper levels of respect and commitment to international law that Waldron argues for, and (b) that the ‘floating normativity’ inherent in the second claim leads Waldron to overlook the specific organizational and structural conditions of international law. This leaves Waldron's position weakest where it should have most to offer: namely, in instances where our commitment to international law on one hand and the rule of law on the other seem to pull in opposite directions.
Positivism and the Pesky Sovereign
David Dyzenhaus
I argue that Hans Kelsen anticipated the main contribution of Jeremy's Waldron's article: the idea that the place of nation states in the international legal order is akin to that of administrative agencies in the domestic legal order, and thus as wielding delegated rather than original authority. For both wish to understand sovereignty as a kind of metaphor for the unity of a legal system rather than as a pre-legal entity. However, legal positivism is unable to make the move to conceiving of sovereignty that way, since the positivist prejudice against natural law has the result that the idea of a pre-legal sovereign is repressed in one place only to pop up in multiple others. In issue in this debate are two conceptions of the rule of law, a positivistic conception that the rule of law consists mainly of determinate rules and a Fullerian conception in which the rule of law is understood as facilitating a certain process of reason and argument. Since Waldron sees the attraction of the latter conception, and since that conception avoids the problem of the pesky sovereign, I suggest that Waldron should embrace it.
Sovereignty, International Law and Democracy
Samantha Besson
In my reply to Jeremy Waldron's article ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, I draw upon and in some ways expand Waldron's important contribution to our understanding of the international rule of law. First of all, I suggest that Waldron's argument about the international rule of law can be used to illuminate how we should understand the legitimate authority of international law over sovereign states, but also how some of sovereign states’ residual independence ought to be protected from legitimate international law. Secondly, I argue that the democratic pedigree of the international rule of law plays a role when assessing how international law binds democratic sovereign states and whether the international rule of law can and ought to benefit their individual subjects. Finally, I emphasize how Waldron's argument that the international rule of law ought to benefit individuals in priority has implications for the sources of international law and for what sources can be regarded as sources of valid law.
Response: The Perils of Exaggeration
Jeremy Waldron
Some of the points made in these comments presuppose that I have a more radical agenda than in fact I have. In this article, I wanted to reorient our understanding of the national state's position in international law, from that of subject to that of source and agency of that legal system, and I wanted to explore the implications of this reorientation for our understanding of the rule of law in the international realm. This reorientation of course requires us to take international law seriously. But it does not necessarily require any particular philosophical view of the relation between international law and national law. 1 In particular it does not direct us to any sort of jurisprudential monism (although it is not incompatible with monism). I think it is quite compatible with a dualist view of the relation between international and national law (not that it commits us to dualism either). It simply assigns the state a somewhat different role from that conventionally assigned in dualist theories. My analysis implies that some of what we would call national state and legal functions can (and should) sometimes be conceived as functions of the international legal system. When a state patrols its borders, for example, it is acting in part as an agency of the international refugee regime. 2 But the exercise of any given legal function can be understood in multiple ways. As I …
A Transatlantic Friendship: René-Jean Dupuy and Wolfgang Friedmann
Pierre-Marie Dupuy
René-Jean Dupuy and Wolfgang Friedmann were good friends and for a large part shared a common vision of how post-World War II international law was structured and the ways in which it was evolving. It is worth comparing their respective views as they reflect the way in which a generation of international lawyers perceived in particular the impact of international organizations on modern international law seen as a true international legal order. Although influenced by the ideas of that period (the 1960s and 1970s), the views of these two great ‘men of vision’ remain of immense interest for the present and for times to come.
René-Jean Dupuy and the Tragic City. The Surveyor, the Captain and the Poet
Alix Toublanc
R.-J. Dupuy's works are based on a dialectical approach to international law which integrates the inner strife and the various antagonisms that beset the ‘terrestrial city’. Nevertheless he refused Hegel's dialectic which opposes thesis and anthithesis to produce a sterile synthesis and leads to rigidity. On the contrary, Dupuy's ‘open dialectic’ is based on the rejection of mechanistic and deterministic philosophies, and his description of the terrestrial city is dynamic, perpetually confronting opposite points of view through the eyes of the ‘Captain’, the ‘Surveyor’, and the ‘Poet’ symbolizing the need for order, for change, and for transcendence.
The Thoughts of René-Jean Dupuy: Methodology or Poetry of International Law?
Evelyne Lagrange
If the thoughts of René-Jean Dupuy had to be reduced to an expression, it would be his method of ‘open dialectic’ applied to international law and society which enabled him to highlight the dynamic opposition of ‘relational’ and ‘institutional’ international trends in an impressive array of short surveys and ambitious synthesis. This article first aims to remind readers of the accuracy of Dupuy's comprehensive approach to international law and society, in that he never disregarded the meaning of rules and institutions for actors – mainly political ones – the underlying values and justice considerations or even myths beyond technical rules or political antagonisms. But it does not suffice to celebrate the visionary and rhetorical skills of Dupuy. His contribution to the methodology of international law has to be assessed. Did he build up a new paradigm? Considering some incertainties in the method of open dialectic and some shortcomings in his core concepts (inter alia a quite static conception of sovereignty), it may be doubted.
The Audacity of the Texaco/Calasiatic Award: René-Jean Dupuy and the Internationalization of Foreign Investment Law
Julien Cantegreil
The Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic awards refer to concession contract provisions and a political context that are now obsolete. Thus, this article argues on the one hand that the award on the merits, delivered in January 1977, provides an unparalleled opportunity to survey almost every facet of the world of international investment arbitration of the past. On the other hand, the award must nevertheless also be read as forward-looking. By fostering a shift from the traditional hegemony of national jurisdiction in international investment law to the internationalization of international contracts, the article underlines that the award on the merits remains the finest example of René-Jean Dupuy's long-lasting contribution to international law doctrine. By way of conclusion, it suggests that it provides the very best expression and point of entry into Professor Dupuy's understanding and shaping of what he coined ‘la communauté’.
Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War
Steven R. Ratner
The International Committee of the Red Cross casts itself as both a unique protector of individual victims of war and a special guardian of the body of international humanitarian law. It manages and reconciles these two roles through a complex, unconventional strategy that includes secret communications with warring parties, ambiguity in conveying its legal views to them, and, at times, a complete avoidance of legal arguments when persuading actors to follow international rules. This modus operandi not only challenges some standard views about the methods used by actors seeking to convince law violators to comply with norms; it also opens the door to a richer theoretical understanding of legal argumentation in that process of persuasion. The resulting construct consists of a matrix of inputs that determine how a persuading entity will deploy legal arguments and outputs that convey the dimensions of the resulting argumentation. Both the theory and the ICRC's work suggest that entities concerned with compliance would often do best to settle for a target to act consistently with a norm rather than to internalize it. They also raise difficult moral questions about whether compliance with international law is the optimal goal if it has adverse consequences for the values an institution seeks to uphold.
Roaming Charges: Berlin
Roaming Charges is a new feature of EJIL aimed at enhancing the ‘book experience' - a moment of reflection as well as aesthetic pleasure disconnected from any ...
What has Become of the Emerging Right to Democratic Governance?
Susan Marks
In 1992 the American Journal of International Law published an article by Tom Franck entitled ‘The Emerging Right to Democratic Governance’. The article inaugurated an important debate on the relationship between international law and democracy. Reviewing that debate, I examine four different ways of thinking about the contemporary significance of the emerging right to democratic governance. While not claiming that any is wrong, I consider some respects in which each is limited. I also discuss Haiti, as a country which inspired the thesis of the emerging democratic entitlement, and one which remains illuminating for it today.
A Democratic Rule of International Law
Steven Wheatley
This article examines the way in which we should make sense of, and respond to, the democratic deficit that results from global governance through international law following the partial collapse of the Westphalian political settlement. The objective is to evaluate the possibilities of applying the idea of deliberative (‘democratic’) legitimacy to the various and diverse systems of law. The model developed at the level of the state is imperfectly applied to the inter-state system and the legislative activities of non-state actors. Further, regulation by non-state actors through international law implies the exercise of legitimate authority, which depends on the introduction of democratic procedures to determine the right reasons that apply to subjects of authority regimes. In the absence of legitimate authority, non-state actors cannot legislate international law norms. The article concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms and the implications of the analysis for the regulation of world society.
The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks
Jean d'Aspremont
Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989–2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007–2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.
Demystifying the Art of Interpretation
Michael Waibel
Despite its codification by the Vienna Convention more than 40 years ago, treaty interpretation in international law continues to evolve as its function of providing predictability in international relations remains as important as ever. The voluminous recent literature testifies to the continuing scholarly interest in interpretation, even if sometimes at the cost of over-theorizing. This essay reviews six books that seek to demystify the art of treaty interpretation. Written by European scholars, the books take a fresh look at interpretation but differ in their approaches and scope of analyses. While all six authors study the interpretive practice of international courts and tribunals, Gardiner, Linderfalk and Van Damme focus on treaty interpretation; Fernández de Casadevante Romani, Kolb and Orakhelashvili also examine the interpretation of decisions by international organizations, unilateral acts and customary international law. Kolb and Orakhelashvili opt for a comprehensive, theoretically-grounded approach, whereas Van Damme focuses on the interpretative practice of the WTO Appellate Body. On the strength of her perceptive and nuanced analysis of WTO jurisprudence, the book is the best guide among the six to interpretation in international law generally. In addition to Van Damme's work, the practitioner will also find Gardiner's book particularly useful.
Jutta Brunnée, Stephen J. Toope. Legitimacy and Legality in International Law (PDF)
Philip Liste
Jutta Brunnée, Stephen J. Toope. Legitimacy and Legality in International Law. Cambridge: Cambridge University Press, 2010. Pp. 411. £29.99 (pbk). ISBN: 9780521706834 ‘The hard work of international law is never done’ (at 8). What might sound like a truism to some is still not well accounted for by a vast body of scholarship even when crossing the bound- aries between the two fields of International Law and International Relations (IR). Yet, Jutta Brunnée and Stephen Toope do engage in an insightful discussion of just that ongoing ‘hard work’. The authors carefully develop what they call an ‘interactional account of international law’ and apply this concept to the three regimes on climate change, torture, and the use of force. By the same token, the work takes issue with the concept of compliance that, following Brunnée and Toope, cannot be reduced to an ‘outcome produced by the norm’ (at 121). This approach by itself is impressive.
Charles Leben. The Advancement of International Law (PDF)
Andreas von Staden
Charles Leben. The Advancement of International Law. Oxford: Hart Publishing, 2010. Pp. 339. £45. ISBN: 9781841132785. The Advancement of International Law assembles 11 articles and book chapters by Charles Leben, emeritus professor of law at the Université Panthéon-Assas (Paris II), that were first published between 1989 and 2006. With two exceptions, they appeared in French and are presented here in translation for the first time to make them accessible to a larger academic audience. The essays are grouped into three parts: the first part revolves around several theoretical issues within the realm of international investment protection; the around groups five essays under the rubric of ‘advances in the theoretical analysis of international law’ and features, in particular, engage- ments with the jurisprudence of Hans Kelsen; the third part deals with select issues concerning the European Union and the European conception of human rights.
Stephan W. Schill. The Multilateralization of International Investment Law
Sergey Ripinsky
Stephan Schill's book, The Multilateralization of International Investment Law, stands apart from the rest of the literature on international investment law which has burgeoned in the past few years. In contrast to most publications on the market, this volume, adapted from the author's Ph.D. thesis, does not attempt to summarize and systematize the developments in arbitral practice. Instead, it reveals an important and previously unexplored dimension of the investment treaty phenomenon by presenting an original vision of the landscape formed by more than 3,000 international investment agreements (IIAs). The author advances and substantiates the seemingly counter-intuitive thesis that these predominantly bilateral instruments do not result in chaotic fragmentation but, taken together, ‘function analogously to a truly multilateral system’ (at 15).
Chris Stephen
The field of international criminal law (ICL) is synonymous with the crowded courtroom and the infamous individual in the dock; Adolf Eichmann, Slobodan Milošević, Saddam Hussein, and now Radovan Karadžić. The actions of such individuals have taken place within the various conflicts and mass atrocities that have proven to be lamentably frequent both during the last century and now into this one. In the aftermath of this sustained bloodshed, trials, whether national (Klaus Barbie in France, John Demjanjuk in Germany) or international (Jean Kambanda before the International Criminal Tribunal for Rwanda (ICTR)), have constituted a frequent (David Scheffer's pronouncement of ‘tribunal fatigue’ suggests perhaps too frequent) reflex reaction by states and have formed the backbone of ICL. Beginning with the Leipzig trials, then via Nuremberg and Tokyo, Yugoslavia and Rwanda to the creation of the International Criminal Court (ICC), successive tribunals have sought to build upon the strengths (and weaknesses) of their predecessors. For example, the recent rise of hybrid courts such as the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia (ECCC) can be attributed, at least in large part, to the flaws of previous international judicial institutions; a perceived lack of legitimacy, huge running costs, and detachment from victims, communities, and the locus delicti. The evolution of ICL thus proceeds through a series of trials and error.
Armin von Bogdandy and Jürgen Bast (eds). Principles of European Constitutional Law
Birgit Schlutter
After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the ‘founding principles of the polity’ and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
Donatella della Porta and Manuela Caiani. Social Movements and Europeanization
Rebecca L. Zahn, Dr. jur
There is an ever-growing body of literature in law and political science on the illusive concept of Europeanization. A lot of the discussion in the literature attempts to define Europeanization and, on the basis of such a definition, to elaborate on the content of the concept. Donatella della Porta and Manuela Caiani, who both work in political science departments, contribute to this discussion by combining insights from the existing body of literature with new empirical findings in order to demonstrate the relevance of the European Union to social movements. The authors situate the discussion surrounding the involvement of social movements in the process of Europeanization within the aftermath of the failed referenda on the European Constitution in France and the Netherlands in 2005 in order to illustrate the contribution of social movements to the debates on European integration. The authors refer to the literature in the area of social movement studies.1 However, they also go beyond the field and combine insights from the literature on Europeanization with empirical research in order to address the involvement of social movements in the process of Europeanization. An example of such involvement is the European-wide campaign against the so-called ‘Bolkestein’ Directive in which social movements actively participated. Social movements, in this context, are defined as ‘dense informal networks of collective actors involved in conflictual relations with clearly identified opponents, who share a distinct collective identity, using mainly protests as their modus operandi’.2
Hans Christian Wilms
The ethical and legal challenges of biomedical research are among the most crucial and interesting questions in law nowadays. One of these questions concerns the regulation of research on human genetic data in transnational constellations. Genetic research promises therapies and prevention for diseases like cancer and HIV, but it is highly dependent on genetic material derived from donors of tissue or blood. For significant advancements in cancer research, for instance, a large number of genetic data of patients is needed. Such data are most effectively collected in and made available by databases or biobanks that allow the exchange of genetic data by various research facilities. To enhance the possibilities and enlarge the amount of genetic data available for researchers the European Union through its 6th Framework Programme of the European Commission under the Action Line ‘Integrated biomedical information for better health’ funded the so-called ‘Advancing Clinico-Genomic Trials on Cancer’ research project (ACGT). This project aimed to deliver to the cancer research community an integrated clinico-genomic information and communication technology environment designed to become a pan-European voluntary network connecting individuals and institutions to enable the sharing of data and tools. However, broadening the scope to the European level causes problems of integration of different national views on ethical issues and their legal framework.
Impressions: Georg Dahm. Völkerrecht, 3 volumes (1958–1961)
Karl Doehring
With Impressions, as the name indicates, we wish to provide a forum for a more personal, historical-contextual approach to book reviewing. We have asked some of our older, possibly wiser, scholars of public international law to revisit a book which very much influenced their thinking, a book that indeed made a lasting impression on them. Rather than presenting a critical assessment of the book, our reviewers will offer personal reflections on the impact a book has had on their own thinking as well as its past and continued relevance for public international law scholarship.
Midas
Laura Coyne
Midas Midas that tough, successful alchemist Before his time Could turn the wind to gold, …