CIAO DATE: 09/2014
Volume: 25, Issue: 2
May 2014
Fateful Elections? Investing in the Future of Europe; Masthead Changes; In this Issue (PDF)
JHHW
Fateful Elections? Investing in the Future of Europe In an earlier Editorial I speculated on the potential transformative effect that the 2014 elections to the European Parliament might have on the democratic fortunes of Europe. I spoke of promise and risk. So now the results are out. How should we evaluate them? I will address the three most conspicuous features of the recent elections – the anti-European vote, the continued phenomenon of absenteeism, and the innovation of the Spitzenkandidaten. The Anti-European Vote and the I-don’t-Care-About-Europe Vote The fathers have eaten sour grapes and the children’s teeth shall be set on edge. In trying to explain the large anti-European vote (winners in France and the UK as well as some smaller Member States of the Union), much has been made of the effect of the economic crisis. Sure, it has been an important factor but it should not be used as an excuse for Europe to stick its head in the sand, ostrich-like, once more. The writing has been on the wall for a while. In 2005 the constitutional project came to a screeching halt when it was rejected in a French referendum by a margin of 55% to 45% on a turnout of 69%. The Dutch rejected the Constitution by a margin of 61% to 39% on a turnout of 62%. (The Spanish referendum which approved the Constitution by 76% to 24% had a turnout of a mere 43%, way below normal electoral practice in Spain – hardly a sign of great enthusiasm.) I think it is widely accepted that had there been more referenda (rather than Ceausescian majority votes in national parliaments) there would have been more rejections, especially if the French and Dutch peoples had spoken at the beginning of the process.
Scientific Reason and the Discipline of International Law (PDF)
Anne Orford
International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today’s highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
Social Capital in the Arbitration Market (PDF)
Sergio Puig
Scholars have often assessed and criticized the group of international arbitration professionals, some characterizing this group as a dense ‘white, male’ group. Faced with limited access and data, however, this critique has not been informed by a robust empirical component. Relying on all the appointments made in proceedings under ICSID between 1972 and February 2014, interviews with arbitration professionals, and an original database created for this project, this article is the first to assess the social structure of investor–state arbitrators. Using network analytics, a long-standing but recently popularized methodology for understanding social groups, the article maps the group of professionals by relying on formal appointments to tribunals. The subsequent analysis of this form of operationalizing the social group reveals who are the ‘grand old men’ (and formidable women) or ‘power-brokers’ that dominate the arbitration profession. The article argues, based on the evidence presented, that, among other factors, in addition to good timing and imperfect information, the structure of the process of appointment, and a risk averse culture, key arbitrators may benefit from heuristic biases, or the limited cognitive scope of lawyers making such appointments.
How is Progress Constructed in International Legal Scholarship? (PDF)
Tilmann Altwicker, Oliver Diggelman
There is a tendency in international legal discourse to tell the story of international law as a story of progress. ‘Progress’ is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in ‘real history’. This article argues that progress narratives in the international legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four ‘bundles of arguments’ – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro gress argument often succeeds in international legal discourse.
Crafting the Nuclear Regime Complex (1950–1975): Dynamics of Harmonization of Opaque Treaty Rules (PDF)
Gregoire Mallard
In recent years, international lawyers have increasingly debated the normative consequences of the ‘fragmentation’ of international law. More rarely have they studied empirically how tensions between overlapping systems of rules emerge, how conflicts are harmonized, and with what effects. This article explains such dynamics in the case of the nuclear non-proliferation regime (NPR) complex. Based on original archival fieldwork conducted in the private papers of American and European diplomats in the early Cold War, it shows how Western states solved the tensions that existed between contradictory commitments contracted in the European Atomic Energy Community (Euratom) Treaty and the Nuclear Non-proliferation Treaty in 1968 (NPT). To lessen the tensions between regional and global orders, the Euratom control rules were used as a source of inspiration for the new rules used to monitor compliance with the NPT at the global level. In retrospect, this outcome was puzzling, as the Euratom Treaty was not originally concerned with non-proliferation issues. That the knowledge of the original intentions behind Euratom was lost to the policymakers who negotiated the NPT thus had grave consequences in the future. This case shows the importance of studying the concrete knowledge of international legal rules that gets transmitted across generations of policymakers in order to understand how regime complexity evolves.
The Tower of Babel: Human Rights and the Paradox of Language (PDF)
Moria Paz
Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a pre-eminent norm, the regime that is applied by judicial bodies supports a different set of human rights: those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.
Petitioning the International: A 'Pre-history' of Self-determination (PDF)
Arnulf Becker Lorca
Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of ‘pre-history’. This article explores that ‘pre-history’ and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
Roaming Charges: Places of Social and Financial Crisis: Dublin 2014 (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 …
Laszlo Blutman
Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept ‘general practice’ and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
Some Ways that Theories on Customary International Law Fail: A Reply to László Blutman (PDF)
Andrew T. Guzman, Jerome Hsiang
This article places the UN Women’s Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee’s importance has largely been overlooked, which is a considerable oversight. The Committee is uniquely positioned to contribute to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this article examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and questions how far the Committee has been able to develop women’s rights in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.
Women's Rights and the Periphery: CEDAW's Optional Protocol (PDF)
Loveday Hodson
This article places the UN Women’s Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee’s importance has largely been overlooked, which is a considerable oversight. The Committee is uniquely positioned to contribute to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this article examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and questions how far the Committee has been able to develop women’s rights in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.
The Venice Commission of the European Council – Standards and Impact (PDF)
Wolfgang Hoffmann-Riem
The article analyses the activities of the European Commission for Democracy through Law. Addressed are the standards applied in the Commission’s opinions, especially on constitutional provisions and other legal norms or drafts. The article looks at the impact that these (non-binding) opinions have on the states concerned as well as on the European Court of Human Rights. Though recommendations are sometimes disregarded, most states do react positively, at least in part. To some extent the Commission could enhance the effect of its opinions by joining forces with other relevant institutions in the field, especially the Council of Europe and the European Commission. Endorsing and implementing recommendations gives states an opportunity to share in the reputation that comes with being part of a community founded on Human Rights, the Rule of Law, and Democracy. An overall assessment is made of the Commission’s approach to its work.
Mark Mazower. Governing the World. The History of an Idea (PDF)
Jochen von Bernstorff
Mark Mazower provides us with a very readable and highly stimulating intellectual history of Western internationalism starting with the Vienna Congress in 1815 and ending in 2012 with the ongoing Syrian civil war. The historical analysis focuses not only on the philosophical and political currents at the heart of 19th and 20th century internationalism but also on how Anglo-Saxon politicians and high ranking civil servants viewed and shaped international institutions during these two centuries; all of this is full of interesting biographical findings, illustrative contemporary quotations, and insightful historical judgement. The book falls into two parts. The first part is on the ‘Era of Internationalism’ and covers developments from 1815 until 1939; the second part is entitled ‘Governing the World the American Way’ and deals mainly with the UN in the post-World War II era until today. Mazower traces four influential currents of ‘internationalism’ in the 19th century, which are all four portrayed as intellectual and political movements arising as a counter-reaction to the holy alliance of European great powers and the associated restorative anti-liberal policies orchestrated by Metternich: Mazzini’s ‘Young Europe’ nationalism, Richard Cobden’s free trade ideology, Marx and organized socialism, and, even though politically less influential, the Anglo-American peace movement. All of these currents are presented by Mazower through short biographical portraits of their inventors who – in the case of Mazzini and Marx as emigrés – lived in London in the mid-19th century. Particularly rewarding is the description of the often tension-filled biographical and intellectual links between them. In one of the last chapters of the first part of the book Mazower introduces international law and science as a 19th century semantics of internationalism. His main focus in the chapter on international law is on the founders of the Institut de Droit International and on the rise …
Mónica García-Salmones Rovira. The Project of Positivism in International Law (PDF)
David Roth-Isigkeit
That positivism is not the promised land of legal methods has become a truism among critical international lawyers. All too often the proclaimed objectivity, neutrality and science has turned out to be intertwined with ideology and domination. In line with the historical-economic turn of the Helsinki school, Monica García-Salmones Rovira’s book The Project of Positivism in International Law finds the historical roots of positivism deeply embedded in the development of a global neo-liberal economy. The economic foundations of the method are unearthed with two intellectual biographies of its founding fathers, Lassa Oppenheim and Hans Kelsen, whose life projects have so far escaped critical scrutiny. The book weaves into these two biographical studies the story of international law as a pragmatist and scientific project that freed the discipline from the tradition of natural law to become a servant of global economic interests. Lassa Oppenheim is known as a representative of the British tradition and one of the most progressive international lawyers of the era before World War II. His biography illustrates how particularly the lawyers of the Empire answered to a specific demand: the need for law and adjudication in the light of a growing global economic interdependence. In terms of method, García-Salmones Rovira describes how Oppenheim could paradoxically argue for an international society and the principle of the balance of power, simply by stripping his legal method of philosophy and replacing it with the content-independent notion of progress (at 48). In the English tradition of liberal political thought, it was the power of interest per se that could create an international community, a community with its roots in commerce and free trade (at 67): ‘Interests claimed monopoly over normativity, interests being at the centre of the theory and the measure of the ethical value of the legal enterprise’ (at 73). …
Carlo Focarelli. International Law as Social Construct. The Struggle for Global Justice (PDF)
Lorenzo Gradoni
An enigmatic epigram welcomes the reader of Carlo Focarelli’s book: ‘[w]hat is a mountain for? For the moon to set behind’ (at lv). Poetic images not infrequently hint at hidden meanings; in this case, however, the enigma stems from the fact that the phrase, although appearing between quotation marks, is not credited to anyone (which is strange for a heavily footnoted book whose name index includes more than 1,000 entries). Since a Google search takes the reader straight back to the book under review and nowhere else, the temptation to assume that the anonymous poet was the author himself has been strong (and maybe imputable to the advent of EJIL’s ‘Last Page’). I resisted this impulse for fear of appearing too unlearned (‘other readers will surely have recognized the author’, I said to myself) to be considered fit to review the immensely erudite book that Focarelli’s International Law as Social Contract indisputably is. Turning a blind eye to the epigraph would have been an easy way out; I chose to ask the author. He was kind enough to reveal to me that the phrase is an abridged version of a dialogue between the famous Swiss psychologist (and polymath) Jean Piaget, asking questions about the Salève, a mountain also known as the Balcon de Genève, and a seven-year-old boy named Rou: ‘The Salève was made “by men. – Why? – It couldn’t make itself all alone. – What is it for? – For the moon. – Why? – For it to set behind.”’1 Enquiring about the meaning of the epigraph turned out to be a serendipitous choice. The author of International Law as Social Construct is fond of definitions. Drawing from Thomas Aquinas, Pico della Mirandola, Kant, Comte, and von Humboldt, he tries …
Giedre Jokubauskaite
Philipp Dann has long been committed to the legal issues of international development cooperation, and now his monograph on this subject, originally written in German, has been published in English.1 The comprehensive monograph entitled The Law of Development Cooperation skilfully builds upon the knowledge that already exists on this topic and systematizes an enormous amount of relevant literature. The reader is presented with a stimulating text that is dense in terms of its arguments and yet easy to engage with. The book is indeed a monumental piece of writing. Not only does it attempt to glue together the whole array of relevant regulations into a common legal framework that applies to development cooperation,2 but it also contextualizes simultaneously this framework with past and present debates about law and development. Hence, the task of the book is immense by any measure, and it clearly runs a risk of not striking the right balance between the breadth and the depth of the argument. However, Dann masters this challenge well. The book can be treated as both a thorough research handbook on legal aspects of international development cooperation and, at the same time, as an academic contribution that contains a plausible set of arguments. While the encyclopaedic element of the monograph is arguably of great value in itself, the following review will engage with two central claims of the book that are proposing new perspectives to the academic debate.3 The argument that the ‘law of development cooperation’ should be regarded as a distinct field of study in international law is a common thread that runs throughout the entire book. To posit that development cooperation is the subject of a body of international law may encounter criticism. It might seem as an attempt to legalize something that is by definition political …
Seline Trevisanut
Many are the threats that challenge the security of the oceans today. Piracy, which was thought to be relegated to history and adventure books (and films), has re-appeared and threatens human lives but also, cynically more importantly for states, the safe transport of goods. The seas provide the main route for trade in goods worldwide. Their security is an imperative for a globalized economy. In the 2008 Report on Oceans and the Law of the Sea, the UN Secretary General identified seven specific threats to maritime security: (1) piracy and armed robbery; (2) terrorist acts against shipping, offshore installations, and other maritime interests; (3) illicit trafficking in arms and weapons of mass destruction (WMD); (4) illicit trafficking in narcotic drugs and psychotropic substances; (5) smuggling and trafficking of persons at sea; (6) illegal, unreported, and unregulated (IUU) fishing; and (7) international and unlawful damage to the marine environment.1 The law of the sea, and in particular the 1982 Law of the Sea Convention (UNCLOS),2 does not specifically deal with maritime security. It nevertheless provides for some instruments in order to manage and counter those threats on the high seas and to limit the otherwise guaranteed freedom of navigation. In particular the right of visit (Article 110 UNCLOS)3 is the core legal basis for any enforcement activity performed, unilaterally or multilaterally, on the high seas. The right to visit is the legal basis for any interception of vessels on the high seas or interdiction programme. It consists of an exception to the exclusive jurisdiction of the flag state on the high seas (Article 92 UNCLOS) and the related principle of non-interference. The analytical study of interceptions of vessels on the high seas, performed for preventing or repressing the above-mentioned threats, is the object of the book under review …
Catriona H. Cairns
The stated aim of the book under review, edited by three prominent Scandinavian academics, is to explore whether a ‘principle of humanity’ exists as an independent, binding norm in international humanitarian law (IHL) or whether its legal impact is limited to the norm-creation process. It consists of 11 articles (with an introduction and a conclusion), divided into two principal sections: ‘theoretical perspectives’ and ‘Nordic experiences’. The editors observe that there is currently a lack of clarity with regard to a ‘principle of humanity’ and, accordingly, propose to consider two related questions in order to illuminate the discussion. The first is whether recent developments may have resulted in humanitarian considerations having a greater impact than considerations of military necessity on IHL. This issue is explored in various articles in both sections of the book, and the articles tend to focus in particular on the impact of international human rights law (IHRL) on IHL. Indeed, one of the major themes of IHL has been the growing move towards the rules of human rights law and vice versa.1 The debate has also gained particular importance from a European perspective as a result of the decisions in Al-Jedda v. United Kingdom and Al-Skeini and others v. United Kingdom. 2 The second question discussed in this book (principally in the second section) is whether certain regions or nations that are not directly affected by armed conflicts are likely to place more emphasis on humanitarian considerations in IHL than are other regions or nations. The issue is addressed from the perspective of Scandinavian nations (referred to as ‘Nordic’ nations), and all of the articles in the second section are written by Scandinavian academics. However, some of these articles not only question whether there is in fact a unified ‘Nordic perspective’ (for ex ample, the article …
Morten Bergsmo and Ling Yan (eds). State Sovereignty and International Criminal Law (PDF)
Alexandre Skander Galand
State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. Even though China is a permanent member of the United Nations Security Council (UNSC), it has until recently been de facto absent from the debates over norms of international law. Likewise, international criminal justice is a field of law that stagnated for more than 40 years. The last two decades have witnessed a revival of both phoenixes. This anthology, prepared in the context of the Li Haopei Lecture Series of the Forum for International Criminal Law, offers the view of Chinese and European international lawyers, scholars and judges on three issues: immunity of state officials from foreign prosecution for international crimes; universal jurisdiction and the newly adopted amendment to the Rome Statute of the International Criminal Court (Rome Statute) on the crime of aggression.1 These three issues are highly topical. In the third and perhaps pivotal chapter, Zhou Lulu, director of the Treaty Division of the Department of Treaty and Law, Ministry Foreign Affairs of China, gives a brief analysis of a few controversial issues in contemporary international criminal law. All of the controversial issues addressed in this article, including aggression, universal jurisdiction and immunity, are discussed by the other contributors to the book – some agreeing and some disagreeing with Zhou. Zhou initiates the debate by making assertive and controversial points on controversial issues. She begins provocatively with the crime of aggression, as defined in the amendment to the Rome Statute adopted at the 2010 Review Conference of the Rome Statute in Kampala, Uganda. The preconditions for the …
Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials (PDF)
Milan Kuhli
The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type. Apart from Gerry Simpson’s introduction, ‘History of Histories’ (chapter 1), the book is divided into seven sections, each of them composed of two to four contributions. Although one of the claimed purposes of the book …
The Waiting Room (PDF)
Kim Lockwood
This here is nowhere. A circle of whiteness squared to still the furthest confines of the room. Passengers pass by with nothing to declare, papers and permissions all approved. As ceaseless movement breaks in waves of sound on sound, a static too thickly sewn to undo grounds us in a place of stark sensation where mattresses are spread thinly on …