CIAO DATE: 02/2015
Volume: 25, Issue: 4
February 2015
From time to time, we are asked about the relationship between EJIL and the European Society of International Law (ESIL). That relationship is simple: the Journal and the Society are two separate, but mutually supportive and complementary entities. Indeed, past and present EJIL Editors can boast, with parental pride, of having been present at the conception, as well as the birth, of the Society! From its inception, membership in ESIL has included automatic online and print subscriptions to EJIL – including very soon a tablet version.The relationship has only strengthened in recent years, with ESIL Presidents and Presidents-elect serving ex officio on the EJIL Board. It is in the spirit of that growing bond that we wholeheartedly share in ESIL’s 10-year celebrations, and have invited the following Guest Editorial from its leadership.
International Legal Scholarship as a Cooling Medium in International Law and Politics (PDF)
Jochen von Bernstorff
The article aims to contribute from a history of science angle to the recent debate on the relation between legal scholarship, utopian ideals, and practice, which was spurred by the EJIL Symposium on Antonio Cassese’s ‘Realizing Utopia’ and subsequent publications in this journal. It defends a conception of legal scholarship that keeps a reflexive distance vis-à-vis practice and current political trends in international relations. It focuses on traditional background assumptions of international legal scholarship, which constantly threaten this reflexive distance. Arguably these background assumptions are a 19th century legacy and today – in a context of fragmentation and globalization – stand in the way of developing the full potential of international legal scholarship as a medium of societal reflection. The classic role of the scholar as a law reformer in the current context turns out to be more problematic than it may have been in the past. Inspired by Kelsenian concerns and Nietzschean metaphorics, the article instead suggests that international legal scholarship functions as a cooling medium for the overheated discursive operations of the political, economic and legal subsystems of World Society.
Reputation and the Responsibility of International Organizations (PDF)
Kristina Daugirdas
The International Law Commission’s Draft Articles on the Responsibility of International Organizations have met a sceptical response from many states, international organizations (IOs), and academics. This article explains why those Articles can nevertheless have significant practical effect. In the course of doing so, this article fills a crucial gap in the IO literature, and provides a theoretical account of why IOs comply with international law. The IO Responsibility Articles may spur IOs and their member states to prevent violations and to address violations promptly if they do occur. The key mechanism for realizing these effects is transnational discourse among both state and non-state actors in a range of national and international forums. IOs have reason to be especially sensitive to the effects of this discourse on their reputations. A reputation for complying with international law is an important facet of an IO’s legitimacy. The perception that an IO is legitimate is, in turn, crucial to the organ ization’s ability to secure cooperation and support from its member states. This article argues that IOs and their member states will take action to prevent and address violations of international law in order to deflect threats to IOs’ reputations – and to preserve their effectiveness.
Richard Bellamy
International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to ‘weak review’. The resulting model of IHRC is that of a ‘two level’ political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates ‘strong’ review.
Equality in Global Commerce: Towards a Political Theory of International Economic Law (PDF)
Oisin Suttle
Notwithstanding International Economic Law’s (IEL’s) inevitable distributional effects, IEL scholarship has had limited engagement with theoretical work on global distributive justice and fairness. In part this reflects the failure of global justice theorists to derive principles that can be readily applied to the concrete problems of IEL. This article bridges this gap, drawing on existing coercion-based accounts of global justice in political theory to propose a novel account of global distributive justice that both resolves problems within the existing theoretical literature and can be directly applied to both explain and critique concrete issues in IEL, including in particular WTO law. By complementing existing coercion-based accounts with a more nuanced typology of international coercion, it distinguishes two morally salient classes of economically relevant measures: External Trade Measures (ETMs), which pursue their goals specifically through the regulation of international economic activity; and Domestic Economic Measures (DEMs), which do not. The distinctive intentional relationship between ETMs and the outsiders they affect means such measures require more stringent justification, in terms of global equality or other goals those outsiders themselves share; whereas DEMs can be justified under the principle of self-determination. Non-Product Related Production Processes and Methods (NPRPPMs) provide a case study to show how this framework can illuminate recurring problems in IEL.
The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects (PDF)
Lorand Bartels
In principle, there are two ways in which states and international organizations can violate the human rights of persons outside their territorial jurisdiction. The first is by extraterri t orial conduct; the second is by domestic conduct, in the form of policies with extraterritor ial effect. This article considers the second of these scenarios, taking as its case study the EU’s obligations under EU law. To this end, it analyses Articles 3(5) and 21(3)(1) of the EU Treaty, EU fundamental rights, and the EU’s international obligations, which are also binding under EU law. It concludes by looking at the enforcement of any such obligations by individuals, the EU institutions, and EU Member States.
Enzo Cannizzaro
The scope of human rights is undergoing a paradigm shift, from a territory-based conception to a functional conception, which tends to protect human rights against the extraterritorial exercise of public authority. In the EU domestic system, this is upheld by Articles 3(5) and 21 TUE, which establish the promotion and protection of human rights as a foreign policy directive. However, the normative effect of these provisions is limited. Due to restraints deriving from the EU Treaties, these two provisions do not seem capable of providing a sufficient legal basis for EU action aimed at promoting and protecting human rights. To endow the Union with the means of action necessary to discharge the engaging function of global protector of human rights, a further development of the European constitutional framework seems to be indispensable.
Roaming Charges: Places of Permanence and Transition: On the Mekong River (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
From Diplomat to Academic Activist: André Mandelstam and the History of Human Rights (PDF)
Helmut Philipp Aust
Today mostly forgotten, André Mandelstam (1869–1949) was a pioneer of the human rights movement in the interwar period. Originally a diplomat in the service of the Russian Empire, he went into exile after the Bolshevik revolution and became an important member of the internationalist scene in Paris. An active contributor to the various professional associations and institutions of the time, Mandelstam came to draft the first ever international human rights declaration which was adopted by the Institut de droit international at its New York session in 1929. His work on human rights protection was influenced by his experiences as a diplomat in Constantinople where, in the years preceding World War I, he had witnessed the growing tensions over the treatment of the Armenian population of the Ottoman Empire. This article traces Mandelstam’s impact on the development of international human rights law and uncovers the driving forces for his work: the end of the Russian and Ottoman empires as well as his career change from diplomat to academic activist. The contribution invites us to reconsider traditional narratives of the origins of international human rights protection as well as to rethink the imperial(ist) influences upon this development.
A Forgotten Kelsenian? The Story of Helen Silving-Ryu (1906–1993) (PDF)
Reut Yael Paz
This article seeks to create a historical contextualization of the first female law professor in America, Helen Silving-Ryu (1906–1993). Relying on Pierre Bourdieu’s work on the social and historical determinants of cultural production, this article situates Silving in her days at the University of Vienna as one of the first six female students to be admitted and as the only female scholar to be mentored by Hans Kelsen (1881–1973). Much of this article deals with Kelsen’s importance to Silving’s intellectual development, particularly because they worked together again in Harvard after both escaped National Socialism. Despite Silving’s later academic contributions and successes, her history has received little attention from the legal discipline by and large. Apart from recovering Silving’s voice, through what she calls ‘Acts of Providence’, this article also shows why, and more importantly how, Silving – and thus also a part of Kelsen’s history – has been forgotten.
Thomas Schultz, Cédric Dupont
Investor–state arbitration, also called investment arbitration, is often accused of harming developing states facing economic hardship for the benefit of a wealthy few from the Global North. Its proponents respond that it is the only available means to resolve disputes impartially, and that its increased use clarifies international law. In this article, the authors investigate the empirical manifestations of the uses and functions of investment arbitration, with an original dataset that compiles over 500 arbitration claims from 1972 to 2010. The study reveals that until the mid-to-late 1990s, investment arbitration was mainly used in two ways. On the one hand, it was a neo-colonial instrument to strengthen the economic interests of developed states. On the other, it was a means to impose the rule of law in non-democratic states with a weak law and order tradition. But since the mid-to-late 1990s, the main function of investment arbitration has been to provide guideposts and determine rights for investors and host states, and thus to increase the predictability of the international investment regime. In doing so, however, it seems to favour the ‘haves’ over the ‘have-nots’, making the international investment regime harder on poorer than on richer countries.
Sophisticated Constructivism in Human Rights Compliance Theory (PDF)
Elizabeth Stubbins Bates
In recent decades, there has been an increase in the volume and sophistication of works on compliance theory in international law in general,1 and in human rights in particular.2 This body of work is interdisciplinary, influenced by political science and international relations in substance and method.3 The typology of compliance theories, once formed of several separate strands,4 coalesced into two duelling perspectives. These were broadly characterized by rational choice approaches, focused on hegemony, sanctions, incentives, and material self-interest, with Andrew T. Guzman’s addition of reputational concerns;5 and constructivist approaches, which argue that repeated interactions, argumentation, and exposure to norms characterize and construct state practice.6 Each of the three works reviewed in this essay critically engages with constructivist research and incorporates some analysis of material incentives, suggesting that constructivism is eclectic and rigorous, willing to debate its own assumptions. Taken together, their contributions are evidence of modern constructivism’s sophistication and methodological breadth.
A Dictionary of Maqiao – In Medias Res (PDF)
Hanne Sophie Greve
Lazy (as Used by Men) ... I’ve often realized, not without a sense of disquiet, that talking isn’t easy, that my words often propagate all kinds of misunderstandings once they’ve flown out of my mouth. I’ve also discovered that even a powerful propaganda machine lacks absolute controlling power over understanding and, similarly, sinks repeatedly into the mire of ambiguity ... he’d been an employee of the Country Film Company but had been relieved of his duties due to his exceeding the birth quota. It wasn’t that he’d failed to comprehend the consequences of exceeding the birth quota: ... After I’d spoken with him, after I’d turned it over endlessly and uncomprehendingly in my mind, there was only one conclusion I could draw: he operated on another vocabulary system, one in which a great many words transgressed ordinary people’s imaginings. For example, ‘violating law and order’ wasn’t necessarily a bad or an ugly thing to do – quite the contrary, violating law and order was a proof of strength, a privilege of the strong, a crucial source of happiness and glory.
Friedrich Kratochwil. The Status of Law in World Society: Meditations on the Role and Rule of Law (PDF)
Jan Klabbers
When Fritz Kratochwil published his classic Rules, Norms and Decisions in 1989, it was reviewed by an obviously bewildered David Bederman in the American Journal of International Law. Clearly, it seemed, here was something international lawyers should take note of, but equally clearly, Bederman, no intellectual slouch by any standard, had a hard time figuring out what made the book relevant, or even just interesting, for international lawyers. It seems Bederman was expecting something along the lines of a description of the role of law in global politics, but no such story unfolded. Instead, Rules, Norms and Decisions posited not a description, but a way of looking at the role of norms in international politics, and did so unlike much of what had gone on before: this was neither a variation on realism, nor riding the wave of institutional liberalism, nor anything like the New Haven approach or sociological jurisprudence or Henkin- style behaviouralism. As it turned out, Rules, Norms and Decisions became the closest thing to a manifesto of constructivism in the study of world politics, and therewith became pigeonholed as one of the three grand theories of international relations.
Isabel V. Hull. A Scrap of Paper. Breaking and Making of International Law during the Great War (PDF)
Oliver Diggelmann
Isabel V. Hull’s book aims to demonstrate that post-1919 writings have contributed to obscuring rather than clarifying international law’s role in how World War I was fought. She develops an original and highly differentiated view on the topic. On the basis of thorough historiographical research, she analyses the belligerents’ legal views put forward during the war and examines their effect on the conduct of war. The title takes up a quotation that later became a cliché about international law’s role in World War I. Immediately after the German attack on Belgium, the German Chancellor Theobald von Bethmann Hollweg called the treaty guaranteeing Belgium’s neutrality ‘a scrap of paper’. This might suggest that World War I was a time of non-existence for international law, a black hole. Hull’s book demonstrates how complex the legal situation predominantly was and that the course of the war was closely interlinked with legal questions and arguments.
Peter Hilpold
There is surely no dearth of studies on genocide, but Mark Levene, a reader in history at the University of Southampton and an expert in genocide research, has demonstrated that it is still possible to add a thorough study to the enormous library already existing on this subject. True, some of Levene’s basic assumptions may be contested in academia but this does not detract from the value of his enormous research project’s outcome. Already on the first page of his monumental study he clearly states its basic assumption: according to Levene, genocide is not an aberrant phenomenon in modern history but ‘integral to a “mainstream” historical trajectory of development towards a single, global, political economy composed of nation states’ (vol. I, at 1). He sees the cases of genocide as a consequence of a more general Great Power conflict and the breakdown of the great multinational states, the Ottoman Empire, the Habsburg Empire, and the Russian Empire of the Romanovs.
Niels Petersen
The concept of precedent has not received much attention in international law scholarship to date. International courts and tribunals are usually not formally bound by previous decisions. Nevertheless, there is no denying that precedents play a significant role in the practice of international courts. Courts cite and rely on previous decisions in order to lend their arguments more force. Two recently published studies aim to shed more light on this tension in the use of precedents: while Marc Jacob analyses precedents in the case law of the European Court of Justice, Valériane König examines the precedential effect of decisions in international arbitration. Both books not only analyse the same concept in different contexts, they also have a common methodological point of departure. They rely to a certain extent on an empirical analysis. They construct a database of decisions and draw several quantitative and qualitative inferences from this database. They thus contribute to a laudable trend in international law scholarship towards a greater focus on empirical analyses, even though the extent and the informational value of the quantitative analysis are limited in both cases.
A Pronunciation Lesson (PDF)
Jonathan Shaw