CIAO DATE: 02/2013
Volume: 23, Issue: 4
November 2012
It was a feature of the Cold War that the Security Council was essentially immobilized in its principal functions under Chapter VII and at times Chapter VI. Since most conflicts were refracted through the dichotomous politics of the Super Powers and at times protagonists were little more than clients of the antagonists of the Cold War, both holding the veto, the Security Council was at best a place to hear canned ideological speeches before washing such down in one of NYC’s more salubrious eateries surrounding the Shoebox. The year 1989 ushered in a different politics and a different paradigm. Suddenly, though far from perfect, the Security Council was no longer that dead letter of the past, with important initiatives carried out under its auspices and with its authority. The difference between Iraq I and Iraq II was telling: Iraq II was not a regress to the Cold War, a sign of failure and irrelevance. Iraq II was a functioning Security Council exercising its authority to say – at best or worst – a muted No. The wars and bloodshed that trouble us most now are no longer the surrogate conflicts of the Cold War, internal or international. One is most concerned with dreadful and savage internal conflict, which can no longer with any credibility come under the gruesome legitimacy of ‘self-determination’, with its ‘hands off’ legal implication. Darfur in the past, and Syria – 25,000 senseless dead, 250,000 homeless and displaced and even larger numbers of external refugees – right now bracket a whole range of humanitarian catastrophes, mostly man made.
Nash Equilibrium and International Law (PDF)
Jens David Ohlin
A new wave of realists argues that international law loses its normative force because states that ‘follow’ international law are merely participants in a Prisoner’s Dilemma seeking to achieve self-interested outcomes. Such claims are not just vastly exaggerated; they misunderstand the significance of game theory. Properly conceived, international law is a Nash Equilibrium – a focal point for states as they make rational decisions regarding strategy. In domains where international law has the greatest purchase, the preferred strategy is reciprocal compliance with international norms. This strategy is consistent with the normativity of law and morality, both of which are characterized by self-interested actors who accept reciprocal constraints to generate Nash Equilibria and, ultimately, a stable social contract. These agents – ‘constrained maximizers’, as the philosopher David Gauthier calls them – accept constraints in order to achieve cooperative benefits. This article concludes that it is also rational for states to comply with these constraints: agents evaluate competing plans and strategies, select the best course of action, and then stick to their decision, rather than obsessively re-evaluating their chosen strategy. A state that defects when the opportunity arises may reduce its overall payoff as compared to a state that selects and adheres to a strategy of constrained maximization.
International Law as Primitive Accumulation; Or, the Secret of Systematic Colonization (PDF)
Mark Neocleous
This article aims to bring the category of ‘primitive accumulation’ into the vocabulary of critical and Marxist international legal theory. It does so by first elaborating the critique of international law that has recently developed through the lens of colonialism, by bringing to bear on the issue Marx’s thinking about colonization and thus his arguments concerning accumulation. In so doing the article also seeks to be an immanent critique of critical international legal theory itself, by suggesting that critical international legal theory is limited by its failure to properly use and think through what Marx might offer. The bulk of the article involves some historical claims, but the central argument is theoretical: offering a category to consolidate the connections that have been made among capital, colonization and international law. This requires a revelation of the secret of Marx’s Capital; the secret of capital and the secret of systematic colonization, all of which takes us to the secret of international law.
Balancing the Scales: The World Bank Sanctions Process and Access to Remedies (PDF)
Laurence Boisson de Chazournes, Edouard Fromageau
The evolution over the years of the mandates and missions of international organizations has reached an important milestone with the emergence and multiplication in the last decade of procedures and mechanisms having a direct impact on individuals and companies. This has gone together with the call for the creation of international remedies with judicial features. International organizations, including the World Bank, have established sanctions mechanisms in an effort to combat corruption and fraud. They are applicable to companies and individuals involved in activities with international financial institutions through procurement or consultancy activities. The World Bank experience offers an interesting example: the decision to sanction individuals and companies entailed the need to provide access to remedies to such non-state actors. External and internal pressures have pushed the institution into putting in place very quickly a mechanism with judicial features. Due process requirements have had a substantial impact on the profile of remedies available to non-state actors in this area.
Arman Sarvarian
There is no ‘international bar’ that regulates the practice of forensic advocacy before international courts and tribunals. The lack of common ethical standards for representatives before international courts and tribunals has become increasingly topical, particularly in the field of investment arbitration. Initiatives by such professional organizations as the International Law Association and the International Bar Association to identify universal ethical principles suggest that there is a body of opinion amongst practitioners who believe that common ethical standards are necessary. However, the topic remains virgin territory in relation to the European Court of Justice and the European Court of Human Rights. This article examines the historical evolution of the representation before the Courts and the procedural and ethical problems concerning representatives that have arisen in practice. It concludes that, far from being a topic of only theoretical interest, there have been considerable problems in practice arising from questionable professional conduct by representatives and conflicting national standards. It suggests that the absence of a prescribed code of conduct setting out the Courts’ precise standard for representatives is a threat to the Courts’ procedural integrity and legitimacy. It proposes that the Council of Bars and Law Societies of Europe take the lead in drafting a code of conduct for the European Courts, in consultation with their judiciaries, which could subsequently be adopted by the Courts and integrated into national codes of conduct.
The Kadi Case – Constitutional Core Values and International Law – Finding the Balance (PDF)
Juliane Kokott, Christoph Sobotta
The Kadi judgment of the European Court of Justice has provoked severe criticism. The Court’s dualist approach was described as unfaithful to its traditional fidelity to public international law and inserting itself in the tradition of nationalism. However, we argue that the Court indicated a possible opening to allow for precedence of Security Council measures, if sufficient safeguards for human rights are created. Moreover, it seems that the Security Council has risen to the challenge by introducing a strong review mechanism. Though this mechanism cannot exclude all possible conflicts between EU and UN law, it can significantly reduce the risk of divergent decisions.
Places of Kitsch: Orlando California (PDF)
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism. ‘Roaming’, ‘Charges’, and those irritating ‘Roaming Charges’ – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photographs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring. Take a moment – enjoy, reflect. If you are online, pause before the next click. Photos from our readers should be sent to ejil@eui.eu.
Reflections on Antonio Cassese's Vision of International Law (PDF)
Antonio Cassese: Head in the Clouds, Feet on the Ground (PDF)
Realism and Utopianism are systemic opposites. They often live together, maybe even inherently, as part of the same system. But as opposites. One can easily argue that international law is a prime example of that co-existence of opposites, in the inbuilt double teloi of Order and Justice; it is not an unassailable case ̶ for why should we imagine that order and justice are opposites? Would not a world of perfect justice be a world of perfect order? It will, say the Prophets, but even they cast such in messianic terms, as a Kingdom to Come, which in secular terms we would call a Utopia. And so we are back to the proposition of an inbuilt system of opposites. We find the same in human beings. I know few, perhaps no one, whose life project is entirely pragmatic, positivist in the here and now ̶ with no dreams. I know a few whose life has been overtaken by a dream, but they usually end up in institutional care. In most of us realism and utopia co-exist and struggle, their tension and its resolution are oft an explanation for decisions we come to regret, for actions we try to forget.
On Realistic Utopias and Other Oxymorons: An Essay on Antonio Cassese's Last Book (PDF)
Marko Milanovic
This article reviews Antonio Cassese’ s last book, Realizing Utopia. In doing so, it also reflects on Cassese the man, since the subject of the book – that of idealistic reform tempered by considerations of practicality and realism – can fairly be said to have defined Cassese himself. The article thus not only explores the book that Cassese edited, but also his own views on the nature of change in the international (legal) order, and on the best methods of securing such change. Both in his capacities as a scholar and as a judge Cassese was at times subjected to often withering criticism for breaking with orthodoxy and failing – or refusing – to distinguish between the law as it is and the law as it should be. His own essays in Realizing Utopia thus provide us with an excellent opportunity to explore these themes anew.
Enhancing the Rhetoric of Jus Cogens (PDF)
Hélène Ruiz Fabri
Recent years have seen increasing references to jus cogens in the case law of several international and even domestic courts. Despite significant discussion in the literature, it remains difficult to identify the real consequences of this trend. The chapter on jus cogens in Antonio Cassese’s last book looks for operative means of enhancing jus cogens. The three proposed paths are not necessarily realistic, but to what extent do they need to be? The hypothesis here is that perhaps it is the act of reflection that sustains the notion of jus cogens ̶and therefore keeps jus cogens itself alive and able to perform its rhetorical function.
Pierre-Marie Dupuy
The ILC Draft on State Responsibility is incomplete. It does not provide the states with any indication as to the acts and measures that so called ‘non injured states’ are allowed to take in reaction to the violation by a state of its obligations towards the International Community as a whole. This article comes back on the previous state practice in Kosovo (as compared to the Syrian crisis in 2012) and takes advantage of the comments made at that time by Antonio Cassese for reviewing Cassese’s proposals and formulating tentative conclusions as to the content and legal regime of these potential measures.
Iain Scobbie
In his essay, ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’, Professor Cassese argues that in order to maintain its position as the principal international tribunal and be attractive to potential parties, lest it lose business to others, the practice and procedure of the ICJ should be reformed in order to make it a true court of law fit for the 21st century. He sets out various changes which he thinks should ensure this result. His principal suggestions encapsulate a view of the function of the International Court and the role of its judges with which I profoundly disagree. Rather than constitute a programme for a 21st century renovation of the International Court, I believe that, at core, these suggestions are a reversion to early 20th century conceptions of the aims of international adjudication which have rightly been discarded in the Court’s practice. On the contrary, I believe that the implementation of some of Professor Cassese’s suggestions would act as a disincentive to potential parties, and doubt whether it is legitimate for the Court to pursue a policy of law creation by way of precedent. On the whole, this is a secondary and marginal function of the Court which principally speaks to the parties, and not to the world.
Global Human Rights Monitoring, New Technologies, and the Politics of Information (PDF)
Philip Alston, Colin Gillespie
Antonio Cassese’s vision for the future of the international human rights and criminal justice regimes relied critically upon the availability of reliable and systematic sources of information about alleged violations, to be provided primarily by the major international human rights NGOs. But the reality is that the existing system is problematically fragmented, hierarchical, non-collaborative, and excessively shaped by organizational self-interest. The politics of information suggests that, in the absence of significant pressure for change, the major INGOs will continue to adopt a proprietorial rather than a communal approach to reported data. We argue that while new information and communications technologies have already demonstrated their potential to transform the existing human rights regime, there is a compelling case to be made for establishing a comprehensive reporting website, open to local actors as well as the international community, and equipped with a collaborative online editing tool that would begin to resemble a human rights version of the Wikipedia. The article explores the many advantages of a human rights wiki, and notes the range of choices that would need to be made in order to shape the structure, and modes of organization and management of such an initiative.
Francesco Francioni
Realizing Utopia is the posthumous testament of Antonio Cassese and an act of faith in the emancipatory power of international law. In Chapter 15 of the book he advocates a further breaching of the wall of sovereignty by enabling international law to invalidate inconsistent national law. This article discusses the ambiguities and pitfalls of this approach in light of the recent (2012) judgment of the ICJ in Jurisdictional Immunities of the State. It argues that, contrary to Cassese’s proposal of ‘moderate monism’, a cosmopolitan view of the global community grounded in the rule of law and human rights may be better advanced by domestic courts, especially when, as in the ICJ case, the reason of justice and the right of access to judicial remedies are trumped by a deferential interpretation of the rule of sovereign immunity.
Sentiment, Sense and Sensibility in the Genesis of Utopian Traditions (PDF)
Orna Ben-Naftali
This essay focuses on Koskenniemi’s contribution to Realizing Utopia, the first substantive chapter of the book. In it, Koskenniemi locates the source of international legal and institutional projects purporting to bring about world government in an ‘oceanic feeling’ – a primordial sentiment of transcendental unity with the world. Following Freud’s analysis of the infantile nature of this sentiment in Civilization and its Discontents, Koskenniemi suggests that it invariably generates hegemonic utopias. My proposition complements this focus on the failing of uncritical utopianism with a focus on the weaknesses of uncritical realism, a realism that has given up on utopian thinking altogether. It may well be that ‘fundamentalist’ realism, no less than uncritical utopianism, accounts for the proliferation of mechanistic blueprints for the management of global problems, a phenomenon which Koskenniemi rightly laments. The observation that a certain kind of utopian thinking is objectionable need not generate an objection to all utopian thinking. The dialectic between hegemonic utopias and pluralistic utopias, a dialectic that I trace back to the book of Genesis, informs this proposition. In this manner, I further seek to complement while complicating the linear Enlightenment narrative of progress from religious to critical thinking. The paradox is the thinker’s passion and the thinker without a paradox is like a lover without feeling: a paltry mediocrity.
Realizing Utopia through the Practice of International Law (PDF)
Isabel Feichtner
This article understands Antonio Cassese’s Realizing Utopia as an invitation to reflect about idealist international law scholarship and its method. In Realizing Utopia and Five Masters of International Law Cassese proposed critical positivism as the adequate method for the international lawyer to interpret international law and to suggest legal reform in order to bring international law better in line with the values of the international community. While I agree that critical positivism allows the practitioner of international law to pursue his utopian vision when interpreting and applying the law, I argue that legal scholarship that engages in proposals on what the law is or should be needs to go beyond critical positivism. On the one hand, it has to venture into other disciplines, such as moral philosophy, political theory, or economics, to justify its choices. On the other hand, it must take account of other subdisciplines of law, in particular private law and ‘law & society’ studies, in order to benefit from their insights into the relationship between law, markets, and society. These reflections, to me, do not diminish the value of Realizing Utopia, but rather suggest that it should be read as an instance of utopian international law practice.
B.S. Chimni
The article offers some reflections on Gandhi’s seminal anti-imperialist text Hind Swaraj (1909). I discuss elements of Gandhi’s critique of modern civilization, noting his emphasis on an evolved ethical and spiritual self for creating a better world. I point out that what is remarkable about Gandhi is that his accent on work on the self is embedded in the world of social and political struggles against all forms of violence and injustice. I therefore read aspects of Gandhi’s critique of modern civilization as a critique of capitalist modernity and imperialism and not modernity per se. I suggest that Gandhi’s stress on work on the self and service to humanity can be combined with the Marx’s emphasis on changes in the material substratum to imagine and realize a more humane, democratic, and just world.
Hans Morten Haugen
The right to food has frequently caught headlines in the mainstream media in recent years. An obvious explanation is the considerable rise in food prices, which first peaked in 2008, followed by a decrease, but then peaked again in 2011, with less publicity, and with almost no subsequent decrease. Moreover, the efforts by the two UN Special Rapporteurs on the right to food – though different in how they have approached policies relating to food – have led to considerable debate.
Rose Parfitt
Professor Roth’s book addresses what – if it were new, as he suggests – would be an extremely alarming development: namely, the tendency of ‘strong’ states to intervene in the affairs of their materially ‘weak’ but formally equal counterparts. Because such interventionism is invariably justified as necessary in order to defend the core principles of a supposedly universal morality (usually, in the UN era, associated with human rights), Roth argues that this practice must be discouraged if the Charter system’s commitment to ‘moral pluralism’ is not to be undermined.
Ronen Steinke. The Politics of International Criminal Justice (PDF)
Alexandra Kemmerer
Ten years ago, on 1 July 2002, the Rome Statute of the International Criminal Court entered into force. Germany had been one of the driving forces to facilitate the establishment of the ICC, and it remains a firm supporter. While France and Great Britain had been reluctant at first, Western Germany convinced all European partners in the mid-1990s of its vision of an independent ICC, not subjected to the control of the UN Security Council. And it fostered and promoted that European position, against fierce US opposition.
Paul Christoph Bornkamm. Rwanda's Gacaca Courts. Between Retribution and Reparation (PDF)
Gerd Hankel
The commencement of proceedings at the Gacaca Courts in Rwanda on 18 June 2002 attracted enormous interest. The question of how the country would deal with a past shaped by the genocide that had ended eight years earlier not only aroused the curiosity of national observers, it also attracted large numbers of international commentators. This situation remained largely unchanged in the years that followed. It sometimes seemed as though a constant stream of academics, in particular, were lining up to take a look at the traditional Rwandan justice workshop.
Annelise Riles. Collateral Knowledge: Legal Reasoning in the Global Financial Markets (PDF)
Fleur Johns
Collateral Knowledge: Legal Reasoning in the Global Financial Markets does for collateral, in legal thought and practice, something like what Marcel Duchamp’s Fountain did with and for the urinal in artistic thought and practice.1 The book takes what Annelise Riles calls a ‘little sideline item’ (at 1) of mundane use in global financial markets – an item of undeniable practical importance, but typically considered unworthy of serious attention – and encourages us to see it anew. As in the case of Fountain, what we may experience afresh is not just the object and the use of it, but also the order of knowledge or, in Riles’ terms, ‘knowledge practice’ (at 10) in which it has been repositioned.
Le droit des nations, Ode (PDF)
Eusebe Salverte