CIAO DATE: 07/2013
Volume: 24, Issue: 2
May 2013
Courts and Consociations, or How Human Rights Courts May De-stabilize Power-sharing Settlements (PDF)
Christopher McCrudden, Brendan O’Leary
We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with non-discrimination and equality norms. Key questions include to what extent, if any, consociations conflict with the dictates of global justice and the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and, most recently, in Sejdić and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdić and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in the Belgian cases. We seek to account for this change and assess its implications. We identify problematic aspects of the judgment and conclude that, although the Court’s decision indicates one possible trajectory of human rights courts’ reactions to consociations, this would be an unfortunate development because it leaves future negotiators in places riven by potential or manifest bloody ethnic conflicts with considerably less flexibility in reaching a settlement. That in turn may unintentionally contribute to sustaining such conflicts and make it more likely that advisors to negotiators will advise them to exclude regional and international courts from having standing in the management of political settlements.
The Purpose of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) (PDF)
Boris Rigod
Among the WTO Agreements, the SPS Agreement provides for the strictest rules on domestic regulatory measures. Governments adopting measures to protect human, animal, and plant life and health have to comply with a plethora of obligations, exceeding the disciplines contained in the GATT and the TBT. Except for cases where scientific evidence is not available, they have to base regulatory measures on a scientific risk assessment, be it their own or one conducted by a third party. Given, on the one hand, the sensitivity of health and environmental concerns and, on the other, the constraints the treaty imposes on governments' ability to address them, the SPS Agreement has been widely criticized for undermining democratic self-government and also for introducing elements of ‘post-discrimination' into the world trade order. This article delves into the question whether the criticism is justified. To that end, it examines the purpose of the SPS Agreement on the basis of economic theory and the negotiating history. It shows that much of the criticism is exaggerated and that the SPS Agreement serves, as does every other WTO Agreement (except for the TRIPs), a single purpose: the preservation of market access commitments. This insight has wider implications, as it suggests that the ‘correct' application of the SPS should in fact lead neither to an (improper) impediment to democracy nor to a ‘post- discriminatory' trade regime.
Realizing Utopia as a Scholarly Endeavour (PDF)
Anne Peters
The article defends ‘critical' or ‘ideational' positivism and explains why and how it can be conducted successfully as legal scholarship. In order to accumulate replicable intersubjective knowledge, legal scholarship should focus less on concrete applications of law, but needs to generate theories in the sense of models that express the patterns of data in the field under observation as parsimoniously and concisely as possible, and thereby reduce complexity. The article then discusses how scholarly contribution to law reform can be explained doctrinally and how it can be justified in normative terms. International legal scholars cannot and should not ‘make' international law in the same sense as governments, because they largely lack the legitimizing factors of representativity, participation, publicity, and accountability. The authority of scholars is not an institutional, procedural, or social one, but purely an epistemic one. Legal academic activity is inescapably political. Scholars should find a middle ground between the unrealistic postulate of value-freedom (Wertfreiheit) and unbounded evaluation. International legal practice supports international legal scholarship, notably by providing a ‘reality check'. Scholarship can inversely support practice by pursuing a via media between infertile alienation from and fetishism with practice. To do so successfully, applied legal research must be complemented by foundational research. Secondly, doctrinal analysis should be complemented by empirical, ethical, and theoretical research. And, thirdly, the typical indeterminacy and dynamics of international law suggest the complementing of positive analysis by normative analysis, because purely positive analysis engenders a false security. The article concludes that the programme of a ‘realistic', as opposed to an ‘illusionary utopia' is the province of legal scholars.
On the Annual Junior Faculty Forum for International Law (PDF)
Dino Kritsiotis, JHH Weiler, Anne Orford
The papers presented in the following colloquium for the European Journal of International Law are the result of the inaugural Annual Junior Faculty Forum for International Law, held at NYU School of Law in May 2012. The second Forum will be held at the University of Nottingham this year, and plans are afoot for the third Forum to head to the University of Melbourne in May 2014.
John Milton and the Epochs of International Law (PDF)
Christopher N. Warren
For the historian of international law William Grewe in his controversial opus, The Epochs of International Law, it was the English writer John Milton who offered the death blow to an entire epoch, one founded on the principle that discovery brought legal title in international law. Yet John Milton's Paradise Lost is rarely considered alongside the history of international law. In this article, I contend that a robust history of international law in the 17th century would profit from engaging head on with literary texts like Paradise Lost. Milton's understanding of the law of nations provides legal scholars with a richer intellectual history of 17th-century international law than that typically on offer - one more sensitive to humanist methods, literary texts, and embodied questions of vulnerability. Approaching the intellectual history of the law of nations dialectically, I suggest that a full reckoning of Milton's law of nations in Paradise Lost requires a careful balance of presentism and openness to alterity - presentism in the sense that we might appreciate how strongly Milton's law of nations resonates with debates about international law in our own time, and alterity in the sense that Milton's law of nations encompassed much that many of today's readers would hardly recognize as ‘international law'. A full intellectual history of Milton's law of nations, then, may require us partly to estrange that term - to set aside a priori definitions of the ‘international' and resist easy transhistorical transpositions from Milton's late Renaissance world to our own - but it also requires a paradoxical domestication of the law of nations, a making familiar, a bringing into one's home.
Humanitarian Financial Intervention (PDF)
Evan J. Criddle
Over the past several decades, states have used international asset freezes with increasing frequency as a mechanism for promoting human rights abroad. Yet the international law governing this mechanism, which I refer to as ‘humanitarian financial intervention', remains fragmented. This article offers the first systematic legal analysis of humanitarian financial intervention. It identifies six humanitarian purposes that states may pursue through asset freezes: preserving foreign assets from misappropriation, incapacitating foreign states or foreign nationals, coercing foreign states or foreign nationals to forsake abusive practices, compensating victims, ameliorating humanitarian crises through humanitarian aid or post-conflict reconstruction, and punishing human rights violators. Whether intervening states may pursue these objectives in any given context depends upon the interplay between several international legal regimes, including international investment law, collective-security agreements such as the UN Charter, the customary law of countermeasures, the law of armed conflict, and customary law governing the enforcement of judicial decisions. By disentangling the various international legal regimes that govern humanitarian financial intervention, this article furnishes a preliminary road map for evaluating the legality of past, present, and future financial interventions - including asset freezes directed against the Qaddafi regime during the 2011 Libyan Revolution.
Investment Treaty Arbitration and the (New) Law of State Responsibility (PDF)
Martins Paparinskis
The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions formed by the regimes that provided the background for its creation.
Aldo Zammit Borda
This article offers an interpretation of Article 38(1)(d) of the ICJ Statute based on the formal pronouncements of international criminal courts and tribunals, distilled from their judgments. It considers that the qualification ‘subsidiary' is meant neither to distinguish the means from the primary sources nor to denote ‘of lesser importance'. It further examines the verification process envisaged in ‘the determination of rules of law', as well as the more direct impact of judicial decisions vis-à-vis the teachings of publicists.
The Backview: New York and Singapore (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.
The International Law of Recognition (PDF)
Emmanuelle Tourme-Jouannet
International society in the aftermath of World War II was faced with demands about culture and identity that placed renewed strain on the principles of legal equality and cultural difference. The less-favoured states - those which felt stigmatized - together with indigenous peoples, ethnic groups, minorities, and women all aspired to secure recognition of their equal dignity and of their specific identities and rights, with some even seeking reparation for the violation of their identities and the confiscation of their land or property. To cater for these new demands, the subjects of international society have developed a new branch of law, which is referred to here as the ‘international law of recognition'. The aim of this article is to highlight these developments, to identify the legal practices arising from this new law of recognition, and to submit them to critical scrutiny.
The International Law of Recognition: A Reply to Emmanuelle Tourme-Jouannet (PDF)
Jean d’Aspremont
This brief article, in offering a critical evaluation of Emmanuelle Tourme-Jouannet's fascinating project on the Law of Recognition, provides some critical remarks on the anthropomorphic moves observed in the international legal scholarship. It simultaneously reflects on the resort to philosophy as a tool for persuasive authority in the processes of creating knowledge about international law. Against this backdrop, the article, while submitting that the Law of Recognition should not be seen as yet another naïve pursuit of equality, universalism, and dignity in denial of the deceitfulness and contradictions inherent in such moral objectivism, argues that the Law of Recognition designed by Emmanuelle Tourme-Jouannet is riven with significant functional and methodological instability which frustrates the possibility of creating new knowledge about international law.
The International Law of Recognition: A Rejoinder to Jean D'Aspremont (PDF)
Emmanuelle Tourme-Jouannet*
I would like to thank Jean d'Aspremont most sincerely for his reply to my article. I find that he very astutely points out weaknesses inherent in the work and raises issues that are essential for international law scholars today. His criticisms will enable me to take my own thinking forward and to clarify aspects I have not developed or that remain insufficiently examined. So as to make the discussion easier to follow, I shall address his criticisms in much the same order as they were raised.
Nathaniel Berman. Passion and Ambivalence. Colonialism, Nationalism and International Law (PDF)
Vasuki Nesiah
It is truly a complete change in the organization of the Society of nations. To visualize it requires imagination and hopefulness. But the alternative is despair. Theodore S. Woosley, ‘The Rights of Minorities under the Treaty with Poland’
Emmanuelle Jouannet. The Liberal-Welfarist Law of Nations: A History of International Law (PDF)
Andrew Lang
This text, an excellent English translation of the original 2011 French publication, represents an ambitious attempt to tell a new history of international law over three centuries, from the 18th century ‘law of nations of the Moderns' to the present day. Its central move is to orient this history round an account of international law's dual purposes, one ‘liberal', the other ‘welfarist.'
Yasuaki Onuma. A Transcivilizational Perspective on International Law (PDF)
Dawood I. Ahmed
As Brazil, Russia, India, China, and other emerging states ascend in economic and military might, they will inevitably want to have much more of a say in international affairs. Thus international law will not only have to address conflicts between different interpretations of law but will also need to accommodate and reconcile the often diverging interests of these states. For evidence of this, one need only look at recent debates in the UN Security Council about Syria. Such a multi-polar order is bound to challenge the existing international legal system. The book under review deals with this challenge and attempts to answer the question of how existing discourses within international law should adjust to this emerging ‘multi-polar and multi-civilizational world.'
Jan Klabbers
Once upon a time, quite a long time actually, international lawyers were not terribly interested in the linguistic aspects of their craft. Treaties, obviously, would depend on language, and sometimes the two or more languages would be designated as equally authentic, but, even so, international lawyers trusted that their professional skills would enable them to solve linguistic issues without too many problems. Occasionally scholars would write something on the interpretation of treaties, typically in the form of fairly brief articles and often inspired by a particular episode or incident, but there was fairly little attention to doctrines of interpretation in the abstract, and little enthusiasm for establishing firm legal rules to structure the process of interpretation. Grotius and Vattel both formulated a handful of guidelines, but no hard and fast rules (despite the occasional use of the term ‘rules') emerged. And many would agree that the guidelines or maxims identified served mainly as justifications ex post facto, having arrived at a preferred interpretation through more intuitive means.
Robin Geiß
The debate about targeted killings has persisted for quite some time now. And it is not likely to go away anytime soon. Despite much opposition - mostly from scholars and NGOs but conspicuously much less from other states - the Obama administration has employed the controversial practice with growing frequency in combat operations in Afghanistan and Iraq, but also and more controversially in counterterrorism operations in Pakistan, Yemen, and Somalia. Moreover, it appears rather likely that in the future more governments will rely on targeted killing operations and the use of drones more often. With the proliferation of drone technology and the development of cheaper missiles - down from approximately US$115,000 for a Hellfire missile to only US$18,000 for the new APKWS II (Advanced Precision Kill Weapons Systems)1 - and in light of a general shift away from troop-intensive interventions to targeted, low-risk operations in response to transnational (asymmetric) security threats, the use of unmanned aerial vehicles to execute such operations is particularly likely to grow.
Kofi Annan with Nader Mousavizadeh. Interventions: A Life in War and Peace (PDF)
Stephen Bouwhuis
Kofi Annan's memoir, Interventions: A Life in War and Peace, provides a timely contribution to the long running debate on humanitarian intervention, published shortly after his resignation as the United Nations-League of Arab States Joint Special Envoy for the Syrian crisis.
Michael Waibel. Sovereign Defaults before International Courts and Tribunals (PDF)
Carlos Espósito
Michael Waibel's book is a timely, elegant, and rich study of the adjudication of sovereign defaults by international courts and tribunals. In a time of learning the hard way to overcome what Reinhard and Rogoff's study of financial crises has described as the ‘this-time-is-different' syndrome, Waibel gives us an account of the underdeveloped state of the law regulating sovereign debt through the study of the relevant cases before international courts and tribunals. These kinds of disputes abound: Waibel's book explains and assumes that ‘[e]ver since the birth of the modern fiscal and borrowing state in the seventeenth century, disputes on the non-payment of sovereign debt have been common.' The book, which has won the 2012 European Society of International Law Book Prize, presents a thorough study of these disputes organized in two parts: the first part is a history of the varied ways in which sovereign defaults have been adjudicated on internationally over the past 150 years; the second part concentrates on the present and future resolution of sovereign defaults by international courts and tribunals, and particularly on the role of arbitration on sovereign debt.
Bas Schotel. On the Right of Exclusion: Law, Ethics and Immigration Policy (PDF)
James Nafziger
A commonplace assumption of migration law is the concept, sometimes called a rule, of inherent sovereign power. Accordingly, a state is said to possess an unbridled power to exclude any or all foreigners from admission into its territory. This assumption is trumpeted as a hallmark of the nation-state system and a foundation of national communities. It is, however, highly questionable, and arguably discredited by general practice and the writings of qualified publicists since the 17th century. In fact, states normally admit limited numbers of foreigners, not only out of self-interest but also for reasons of international cooperation, solidarity, and other motivations premised in opinio juris. Still, the inherent sovereignty rule labours on against the evidence, not so much among policymakers and busy administrators, who ordinarily know better, but among academic writers, who should know better. Unfortunately, the concept is not just academic. Instead, it shapes public understanding and discourse about human migration and contributes to unnecessarily restrictive paradigms within which national and international regulation of migration is moulded.
Sandra Liebenberg. Socio-Economic Rights. Adjudication under a Transformative Constitution (PDF)
Brian Ray
Writing in 2001 shortly after the South African Constitutional Court decided the celebrated housing-rights case Grootboom, Cass Sunstein hailed the Court's ‘extraordinary decision' as establishing ‘a novel and promising approach to judicial protection . . . for each person whose socio-economic needs are at risk'. Sunstein was referring to the Court's application of what it called ‘reasonableness review' to issue an order requiring future modification of the challenged housing policies rather than a direct injunction providing housing for the plaintiffs in Grootboom who were facing eviction. For Sunstein - who only eight years earlier had argued strongly against inclusion of social rights in the constitutions of developing East European democracies - the ‘distinctive virtue' of the Grootboom approach was that it ‘suggests that such rights can serve, not to preempt democratic deliberation, but to ensure democratic attention to important interests that might otherwise be neglected in ordinary debate'. In a short response, Theunis Roux wrote that Grootboom's limited remedy ‘was not extraordinary enough' because the Court's failure to, at a minimum, oversee compliance with even the very general terms of its order (much less provide any direct relief to the plaintiffs) fell far short of the expectations of advocates for the poor in South Africa and South African constitutional law experts more generally.
Ballade of Schadenfreude (PDF)
Susan McLean