CIAO DATE: 07/2014
Volume: 25, Issue: 1
February 2014
JHHW
On 26–28 June 2014, in Florence, the European University Institute and NYU–La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON•S). We invite all our readers to submit proposals for either individual papers, or even more ambitiously, proposals for panels which, if selected, will be presented at the Inaugural Conference. Full details, modules for submitting proposals and for registering for the conference may be found at http://icon-society.org/. Registration for the Inaugural Conference includes the first annual membership fee in ICON•S and a free one-year online subscription to I•CON, the International Journal of Constitutional Law. Why create a new international learned society – are there not enough already? Why public law – if we typically teach Constitutional Law, Administrative Law, or International Law (and now the much à la mode Global Law)? And why does the word ‘comparative’ not feature in the title of the new Society? Surely if we bring together constitutionalists from, say, Japan and Canada or administrative lawyers from Italy and Turkey – their common language will be Comparative Law? The initiative to create an International Society of Public Law emerged from the Editorial Board of I•CON – the International Journal of Constitutional Law. For several years now I•CON has been, both by choice and pursuant to the cartographic reality of the field, much more than a journal of comparative constitutional law. I•CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered, to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also – and increasingly so – scholarship that reflects both legal reality and academic perception; scholarship which, in dealing with the challenges of public …
Daniel Bethlehem
This lecture, inaugurating a lecture series in honour of Sir Elihu Lauterpacht, looks at the changing place of geography in the international system and the challenges that this poses to international law, from the central place of geography in the Westphalian legal order to its less certain place in the rapidly globalizing and diffuse international society of the present day. Examining these issues through the contrasting prisms of the principal political organs of the United Nations in New York, on the one hand, and the UN Specialized Agencies centred in Geneva, on the other, the lecture also explores these issues by reference to Thomas Friedman’s thesis that The World Is Flat. The lecture concludes by identifying a number of areas of international law, and the international legal system, that will require creative thinking in the period to come to reflect the diminishing importance of geography.
David S. Koller
This article responds to Daniel Bethlehem’s assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law’s efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
Carl Landauer
Daniel Bethlehem makes a convincing case in ‘The End of Geography’ that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem’s voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours (PDF)
Maria Artistodemou
This article is a radical rethinking of public international law through the use of Lacanian psychoanalysis. Its central thesis is that while contemporary scholarship addresses what Lacan calls the symbolic and imaginary registers including law, politics, and ideology, it continues to ignore and repress the dimension of the real. The article illustrates this with a clinical example examined by Kris and discussed by Lacan. Imagining public international law as an indefatigable neurotic in search of ‘fresh brains’, the article shows why meeting her in the domains of law and politics is not enough to satiate her appetite. What continues to resist is the ‘extimate’, the inhuman element within the human that the subject hides so well from herself that it is excluded in the interior. A major instance of the extimate is the ‘caffeinated neighbour’, that is, the neighbour who is not in our image because her disturbing core has not been subtracted. The article argues that unless international law comes to terms with this inevitably ugly and obscene core, in oneself as well as in the neighbour, it cannot hope to achieve any meaningful changes. That the need to recognize the extimate is the ethical demand facing international law now; unless we address it, our symptoms will continue to grow and we will continue to crave fresh brains.
The Beneficiaries of TRIPs: Some Questions of Rights, Ressortissants and International Locus Standi (PDF)
Christopher Wadlow
The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state’s own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the …
Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy (Abstract only)
J.H.H. Weiler
Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to ‘celebrate’ Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
Eyal Benvenisti, George W. Downs
In its Van Gend en Loos judgment, the ECJ assigned citizens directly enforceable rights vis-à-vis their respective state executives, and authorized national courts to protect those rights. What explains the Court’s suspicion of state executives as the sole actors to implement Community law (acting directly or through the Commission)? What justifies its confidence in the ability of the national courts to protect the individuals? We submit that the ECJ was informed by the premise that national courts acting in unison could withstand political pressures and protect individuals while implementing the Treaty. Moreover, the ECJ understood that its interaction with national courts would put it in a position potentially to offer significant support for citizens of relatively weaker countries against various predatory policies employed by the more powerful states in the organization. In this article we explore these premises and present evidence to support them. More generally, we argue that there is good reason to endorse this model of judicial activism as a means to ensure democracy as judged by the effective and informed participation of individuals in public decision-making that affects them – within international organizations. This judgment demonstrates the promise of greater interaction and coordination between national and international tribunals in preventing democratic failures at both the national and international levels. Although judicial intervention often pre-empts public deliberation, it can also encourage it; although it may operate to pre-empt the vote, it can also function to ensure it.
What Van Gend en Loos Stands For (Abstract only)
Damian Chalmers, Luis Barroso
This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 105–134 doi:10.1093/icon/mou003 Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.
The Duality of Direct Effect of International Law (PDF)
Andre Nollkaemper
This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
Revolutionizing European Law: A History of the Van Gend en Loos Judgment (Abstract only)
Morten Rasmussen
This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
Direct Effect of International Agreements of the European Union (PDF)
Francesca Martines
The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
The Evolution of Direct Effect in the EU: Stocktaking, Problems, Projections (Abstract only)
Sophie Robin-Olivier
Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of (‘direct effect’) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights’ protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, ‘Revisiting Van Gend en Loos’ leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).
Is There a Case – Legally and Politically – for Direct Effect of WTO Obligations? (PDF)
Helene Ruiz Fabri
WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
Waiting for the Existential Revolution in Europe (Abstract only)
Jan Komarek
This essay argues, contrary to the widespread beliefs that prevailed after 1989, that the experience of post-communist countries and their peoples, both before and after 1989, can bring something new to our understanding of Europe’s present predicament: sometimes as an inspiration, sometimes as a cautionary tale. The lessons offered by post-communist Europe concern some deeply held convictions about the very nature of the EU and its constitutional structure. Only if this experience is absorbed in Europe as its own will post-communist countries truly return to Europe – and Europe become united. The cautionary tales of post-communist Europe concern the worrying consequences of the suppression of social conflicts ‘in the name of Europe’. Such conflicts often get translated into identitary politics, which in the context of European integration often turn against the Union. The second lesson concerns the ill fate of Havel’s existential revolution. The attempts of some European constitutionalists to reform individualistic emphasis of the integration project are problematic for the same reason: they turn attention away from politics, where real solutions need to be found. This relates to the third suggestion made here: that the experience of living in a collective dream of socialism can be used as an inspiration rather than as something that needs to be erased from the collective memory of Europe.
Is Global Constitutionalism Meaningful or Desirable? (PDF)
Michel Rosenfeld
Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones.
Roaming Charges: Moments of Dignity: Prepping for the Prewedding Photograph, Peking (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.
Alina Mungiu-Pippidi, Dia Anagnostou
Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dy namics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court’s judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
Erik Voeten
This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu-Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors’ analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.
UN Immunity or Impunity? A Human Rights Based Challenge (PDF)
Rosa Freedman
National courts have long understood the UN to have absolute immunity from their jurisdiction, based upon provisions in the UN Charter and the Convention on Privileges and Immunities of the UN. While state immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis, questions have arisen as to whether that doctrine applies to international organizations and, specifically, the UN. The counterbalance to the UN’s absolute immunity is the requirement that it provide alternative mechanisms for resolving disputes. This raises concerns about accountability and internal review. Case law from various courts demonstrates an increasing willingness to attempt to challenge absolute immunity on the basis that the bar to jurisdiction violates claimants’ rights to access a court and to a remedy. In all of those cases, individuals’ ability to access alternative mechanisms for dispute resolution has been used to show that their rights have been realized. Recent events concerning the 2010 cholera outbreak in Haiti may lead to a challenge to the UN’s absolute immunity. The UN has deemed those claims to be ‘not receivable’, which denies the claimants their rights to access a court and to a remedy. In October 2013, lawyers for the Haiti cholera victims filed a class action in the Southern District of New York, seeking to challenge the UN’s immunity by bringing the Organization before a national court. This article explores whether the events in Haiti may provide the first successful, human rights-based challenge to the UN’s absolute immunity.
An International Lawyer in Democracy and Dictatorship – Re-Introducing Herbert Kraus (PDF)
Heiko Meiertons
Herbert Kraus (1884–1965) is among the forgotten international lawyers of the 20th century. Kraus took part in a number of developments of great importance for the shaping of modern international law: he participated in the drafting process of the Versailles Peace Treaty and the Treaty on the European Coal and Steel Community and acted as defence counsel at Nuremberg. The founding director of the Institute for International Law at the University of Göttingen was forced to retire between 1937 and 1945 due to his criticism of National Socialism. The post-war perception of his work was coined by his forced retirement. However, his work between 1933 and 1937 sheds light on the dilemma of choosing between opposition and adjustment that Kraus was faced with during that period. This article re-introduces Kraus – a complex German character of international law – and the main features of his work.
Towards a Global History of International Law? Editor's Note (PDF)
Alexandra Kemmerer
As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.1 Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world. The field of the history of international law, however, has lagged behind. Historians of international law, be they lawyers or historians, did not explicitly turn to global perspectives. The protagonists of the blooming field of global history (or world history, or transnational history), in turn, did not show much interest in the law, be it as a normative concept or a material practice. And post-colonial and subaltern critical approaches in law and history, while widening the scope of inquiry and exploring peripheries, have challenged and often rejected the very notion of the ‘global’. In short, the concepts of ‘global’ and ‘modern’ are indeed two-edged swords when it comes to understanding the world.2
The Spectre of Sources (PDF)
Rose Parfitt
The editors of this impressive and timely volume,1 Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from … the ‘well-worn paths’ of how the history of international law has been written so far – that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe. Their aim is that the Handbook should represent ‘a first step towards a global history of international law’, and therefore also towards ‘overcoming [the] Eurocentrism’ by which this area of study has, as they observe, long been afflicted (at 1). Given that the history of international law has tended to be a history of states, and that most of the world’s non-European states came into existence after 1945 (the Handbook’s chronological cut-off point), this goal is not an easy one to achieve. Indeed, as Martti Koskenniemi points out (at 970), [w]hat we study as history of international law depends on what we think ‘international law’ is in the first place; it is only once there is no longer any single hegemonic answer to the latter question, that the histories of international law, too, can be expected to depart from their well-worn paths. What is required in order to meet the editors’ goals, in other words, is nothing less than a revolutionary re-imagining of the discipline. In the following review of Part II of the Handbook, on ‘Themes’, it will be suggested that such a task presents special challenges for international legal doctrine.2 For if ‘doctrine’ can be understood as the space in which international history is transformed, or ‘imaged’, into international legal history through its ordering into …
Sleepy Side Alleys, Dead Ends, and the Perpetuation of Eurocentrism (PDF)
Stefan B. Kirmse
My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law. On the whole, and even if some of my remarks are critical, the Handbook struck me as wide in scope and rich in detail. It approaches the history of international law from various perspectives, including concepts, regions, and individual actors. The recurrent feeling of having identified an issue that does not receive sufficient attention usually evaporates a few hundred pages further down when you find a whole section or chapter on the subject. The book, in this sense, is disarmingly detailed and exhaustive. The Handbook’s key objective is to overcome Eurocentric analysis and write an alternative history or, more precisely, alternative histories of international law. The introduction describes existing accounts as incomplete because they ignore not only the ruthlessness and destructiveness of European impositions but also most legal relations that did not involve Europeans, and legal norms that did not survive and become part of today’s body of international law. These aims are not only laudable and important but also backed up on the level of research design: the book includes a large number of legal experts from all over …
Is there a Role for Islamic International Law in the History of International Law? (PDF)
Nahed Samour
Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law.1 In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the ‘gaps’ and the ‘forgetfulness’2 of how today’s doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things. One, in both the preface and introduction, it necessarily tackles the question of Eurocentrism as a problematic legacy in the field of international law. The editors are frank about the colonial ideology of Europe’s civilizing mission in the making of ‘modern’ international law.3 This conscious choice leads the editors to include the critiques of international law as a field of hegemony in their chapter on ‘Methodology and Theory’, making voices against Eurocentrism central where previously these voices had been considered marginal or not even worth including in a serious international law publication. Take, for instance, the American Journal of International Law Symposium on Method in International Law in 1999, where Third World Approaches to International Law were omitted.4 In contrast, the editors of the Oxford Handbook made it clear that they understand Third World Approaches to International Law as a distinctive way of thinking about what international law is, and how it came about, and that these third world approaches involve the formulation of a particular set of concerns and the analytical tools with which to explore them.
Statelessness: An Invisible Theme in the History of International Law (PDF)
Will Hanley
The Oxford Handbook 1 is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book’s scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its ‘Regions’ section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible. This book seems to be as comprehensive an account of the global history of international law as can reasonably be produced under current conditions. For this reason, it is a particularly valuable indicator of the characteristics and structures that presently define the field. The book shows that the history of international law is dominated by Europe, by states, and by ideas (especially the ideas of great men). Critique of Eurocentrism is a central feature of the Handbook, and the collective draws effect ively on a variety of existing scholarship to trounce this tendency quite completely. It appears, however, that existing scholarship offers relatively fewer resources to tackle the centrality …
Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law (PDF)
Anne-Charlotte Martineau
Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law 2 – a robust book of 1250 pages. I was asked to ‘critically assess’ the Handbook’s ‘global history’ approach, that is, to assess whether it was a successful step in ‘overcoming Eurocentrism’ in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingness to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from ‘well-worn paths’ (to use the editors’ expression) (3), I would like to say few words about the ‘global history’ approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
Prospects and Limits of a Global History of International Law: A Brief Rejoinder (PDF)
Anne Peters, Bardo Fassbender
As we remarked in the Introduction to our Handbook,1 it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or ‘complete’. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground. What came as a pleasant surprise, though, was a stimulating workshop in Berlin to mark the publication of the Handbook. Organized by Alexandra Kemmerer and ‘Rechtskulturen: Confrontations Beyond Comparison’, an initiative of the Wissenschaftskolleg zu Berlin and Humboldt University Law School, the workshop was a generous gift, and we appreciate how much time and energy went into it. We are very grateful to all those who made it possible, and to all who participated in the event. Before a large crowd of interested listeners, some 20 lawyers, historians and political scientists critically discussed in three panels the conception, the structure and the substance of our Handbook, focusing on the ‘Encounters’ section, various ‘Themes’ analysed in Part II and, lastly, on a primary motive of the Handbook: ‘Overcoming Eurocentrism’. Adding to that gift now is the publication, in this Journal, of revised versions of some of the remarks made at the Berlin workshop. It is truly rewarding and we feel honoured to …
Susannah Wilcox
There is growing evidence that climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns are exacerbating existing vulnerabilities like poverty, isolation, and resource scarcity, and may eventually leave small island states uninhabitable, causing the displacement of entire populations. Among those particularly at risk are low-lying coral atoll states like Kiribati, Tuvalu, and the Republic of the Marshall Islands in the Pacific Ocean, and the Republic of the Maldives in the Indian Ocean. Small island states have been active participants and leaders in climate change negotiations over the past two decades. Often acting collectively through the Alliance of Small Island States (AOSIS), they have drawn regional and international attention to the impacts of climate change on their territories and populations, adopting the Male’ Declaration on the Human Dimension of Global Climate Change,1 initiating a Human Rights Council Resolution on Human Rights and Climate Change,2 contributing to the adoption of a General Assembly Resolution on the security implications of climate change,3 proposing that states request an Advisory Opinion from the International Court of Justice on state responsibility for transboundary climate change harms,4 and contributing to expert forums on climate change and displacement.5 The edited collection under review marks a fruitful collaboration between a small island state and the academic community. Emerging from a conference co-hosted by the Marshall Islands and Columbia Law School in May 2011, Threatened Island Nations is a timely and thorough contribution to a rapidly expanding debate. The authors address the unprecedented legal and practical challenges faced by the Marshall Islands and other low-lying small island states, whose territory may become uninhabitable as the impacts of climate change continue to bite. In doing so, they highlight the challenges presented by climate change to the concepts and principles that underpin …
Michael Byers. International Law and the Arctic (PDF)
Timo Kolvurova
Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book. Byers is not alone in his endeavour. Academic research on the role of law and in particular international law in the Arctic has been growing in recent years, mainly for two reasons. First, climate change and economic globalization are opening up the Arctic to new economic activities, creating a demand for legal rules to ensure safety and order. Secondly, the media frenzy over an alleged great power game between the Arctic states has prompted scholars to take an interest in law and politics in the region. Legal scholarship dealing with Arctic issues has grown substantially. When the Arctic Council’s original Arctic Human Development Report (AHDR) was compiled in the 2002–2004 period,1 it was difficult to find enough legal scholars to contribute to the chapter on law. Today, there is no shortage of contributors to the updated edition of the AHDR which is currently being finalized. New journals and periodicals have …
Morten Bergsmo (ed.). Quality Control in Fact-Finding (PDF)
James G. Devaney
Quality Control in Fact-Finding is, above all else, a very welcome addition to the literature on international fact-finding. Whilst there has been a marked increase in the number of fact-finding inquiries established in the last couple of decades,1 this has not been matched by a similar increase in the number of scholarly studies of such inquiries.2 In light of both the number and high-profile nature of such inquiries, the absence of scholarship focusing squarely on the contemporary role of inquiries up to the present day seems like an oversight. This collection, published in open access format by Florence-based, not-for-profit ‘academic EPublisher’ Torkel Opsahl (named after the late Professor Opsahl who himself briefly chaired the Commission of Experts for the Former Yugoslavia until his untimely death in 1993), attempts to address this lack of academic attention. The collection ostensibly sets out to ‘make a contribution to the emerging discourse on fact-finding mechanisms’ by ‘focusing specifically on quality awareness and quality improvement in non-criminal justice fact-work’ (at viii). Its accessible style, open access format, and the breadth of topics covered will attract the attention not only of international legal scholars, but practitioners and policy-makers too. In the opening chapter Marina Aksenova and Morten Bergsmo provide a helpful overview of the concept of international fact-finding itself and of the fact-finding missions established in recent decades. The authors define the concept of fact-finding broadly as a method of ascertaining facts used in international relations for differing purposes (at 2), before noting that traditionally there are three main purposes for establishing facts in international law. The first is the narrow purpose of fact-finding ‘in cases where differences of opinion on factual matters underlie a dispute between parties’, for which a procedure of inquiry was set out in the 1899 and 1907 Hague Conventions, …
Bhopal (PDF)
Keith Ekiss
Narayan told me about the city in India where he once studied, a literary centre known for festivals and lively debates, crowds gathering to hear the poetry readings which, …