magnify
Home Articles posted by Jan Klabbers

Kristina Daugirdas, ‘Reputation and the Responsibility of International Organizations’

Published on March 25, 2015        Author: 

It has long been recognized by international lawyers of a more or less critical bent that one of the ways international law can be considered useful – regardless of the question whose idea of usefulness it serves – is that is provides a vocabulary for discussing things. Rules on use of force and self-defense may not solve conflicts, but provide a language (and often enough the most relevant language) for discussing the use of force. Rules on international trade may not solve trade conflicts, but help provide the relevant actors with a language in which to discuss whether tuna caught by means of driftnet fishing should be banned from markets or not. And even the rules on state succession, limited and few as they are, help facilitate discussions on what to do once a succession of states occurs.

In this light, Kristina Daugirdas’ main argument is hardly surprising. The point that the ILC’s articles on the responsibility of international organizations will play a role in what she refers to as ‘transnational discourse’ is both well-taken and well-crafted. Indeed, the evidence in support of that proposition is perhaps even stronger than she realizes: both before and after their adoption by the ILC, the articles have been referred to by international and domestic courts, including the European Court of Human Rights. That said, it is perhaps also useful to note that the International Court of Justice managed to avoid making any reference to the ILC articles in two recent decisions where a fleeting reference could have been expected: the 2011 judgment between Fyrom and Greece, and the 2012 advisory opinion on the International Fund for Agricultural Development. Still, on the topic at hand, the ILC’s articles are the main authoritative instrument available, so it stands to reason that participants in transnational discourse make reference to it, and look at the articles for inspiration and guidance, regardless of whether the articles are formally binding or can be said to reflect customary international law.

If her general point is not all that surprising, the more interesting part of Daugirdas’ article resides in the combination she makes of two distinct approaches to the study of international organizations. She draws inspiration both from constructivism (highlighting the relevance of norms) and rational choice theory (assuming actors to be inspired by rationalist motives in the pursuit of their self-interest), and does so to good effect. In itself, this combination too is not entirely novel: Ian Hurd and Ian Johnstone have done something similar in recent years (to name just two examples), and one of the Ur-texts of constructivism, Fritz Kratochwil’s Rules, Norms and Decisions (1989) was to a remarkable (and oft-forgotten) degree also inspired by rationalist insights. That said, in his later work Kratochwil seems to have lost some confidence in that kind of reasoning – or maybe he just lost confidence in some of its practitioners. Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on Kristina Daugirdas, ‘Reputation and the Responsibility of International Organizations’

Editor’s Book Choices by Jan Klabbers

Published on December 23, 2014        Author: 

Editor’s Introduction: EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL:Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Last week, we began with our Editor-in-Chief’s selection.

I read quite a few academic books, and tend to read them cover to cover. Partly this is facilitated by being on a lengthy sabbatical: at the moment I spend little time teaching and, blissfully, even less on faculty committees. And partly I read books, and read them cover to cover, because I feel that books can do things that other manifestations of the written word (the journal article, the blog, never mind the tweet) cannot accomplish: most arguments need some space to develop in full, and need to include some empirical support (in whatever form) in order to be convincing – otherwise they remain mere opinions, as indeed is perhaps too often the case even with journal articles, never mind tweets and blogs. As always, there are opportunity costs: I may read books, but I read relatively few academic articles, and usually merely skim the handful of blogs I tend to follow.

That is not to say that articles are by definition flawed. It was no doubt appropriate for Hersch Lauterpacht to write about the Grotian tradition in article form – 300 pages on the topic would have been tedious. By the same token, The Function of Law in the International Community could not be addressed within the confines of an article – 30 pages on the topic would have remained superficial. Thus, there is a time and a place for various manifestations of the written word – even, I suppose, however reluctantly, for the tweet.

My readings tend to be eclectic, even when I read simply for relaxation: from crime and espionage novels to Nobel prize material. Likewise, my academic readings are eclectic, and often somehow related to whatever topic has sparked my interest. Some factors are constant: I try to keep up with the law of treaties, which is fairly easy since no one writes books about the law of treaties other than, sometimes, in waves of fashion: in the 1990s people wrote on reservations, a decade ago on treaty conflict, and currently on treaty interpretation. I also try to follow whatever comes out on the law of international organizations, and in particular on the underlying history and theory of institutional law. From a distance and usually with some delay, I try and keep up with the external relations law of the EU (one of the best books I read in 2013 was on this topic: the excellent study by Mario Mendez). And then I have an interest in ethics, in particular in trying to find a way of applying what is known as virtue ethics to international affairs, so not surprisingly, much of what I read at the moment is in one way or another related to this.

So too my favourite readings of 2014. Part of the reason why I think virtue ethics is of relevance resides in the fact that global governance by and large escapes legal scrutiny, a situation that is confirmed by the paucity of writings on international law and global governance. With this in mind, the publication of Eyal Benvenisti’s Hague Academy lectures in book form under the title The Law of Global Governance came not a moment too soon.  Read the rest of this entry…

Filed under: EJIL Book Discussion
 

The Genre of Constitutionalization?

Published on August 10, 2010        Author: 

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to. Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on The Genre of Constitutionalization?

Constitutionalization and International Law-making

Published on July 13, 2010        Author: 

Professor Jan Klabbers is Professor of International Organisations Law, Director of the Centre of Excellence in Global Governance Research and Deputy Director of the Erik Castren Institute of International Law and Human Rights at the the University of Helsinki.

The main question underlying the recent book byAnne Peters, Geir Ulfstein and I – The Constitutionalization of International Law  – is this: presuming that international law is indeed, as many contend, constitutionalizing, then what would international law come to look like? Given that there are a number of issues constitutional regimes usually address (political institutions of the community, membership, judicial organization, law-making, and procedures for the making of decisions), we wondered how these would, could or should be addressed in a constitutionalizing international legal order. Our aim was not to demonstrate that constitutionalization is actually going on – we simply presume it is, and leave the demonstration to others. Nor did we set out to sketch an ideal global constitutional order: this is a task perhaps best left to moral philosophers. Instead, we decided it might be interesting to take the claim of constitutionalization seriously and try to figure out what its consequences would be for international law.

The book’s first chapter is dedicated to ‘setting the scene’. It discusses globalization and a number of other current and related phenomena, such as the fragmentation of international law. One of the main points of the opening chapter is to establish that, in a world of well over six billion people, divided into 200 states and a handful of major religions, cultures, and ethical traditions (not to mention their widely divergent situations, giving rise to widely diverging interests), full agreement on all political topics is unlikely. In other words: the chapter recognizes that we live in a world of value pluralism, which entails that constitutionalism has to be pluralist as well: it has to respect and accommodate pluralism.

Second, a constitutional order needs to be a legitimate order. Now, legitimacy is a term which has been, and is, much abused, and while the chapter tracks the legitimacy debate to some extent, the main point for present purposes is simply this. Hypothetically, a constitutional order can be ran in many fashions – depending on one’s definition of constitutionalism, there may be no inherent contradiction between constitutionalism and enlightened dictatorship or rule by aristocracy, or even foreign rule or empire. Yet, these are not versions of constitutionalism we would subscribe to. Instead, the idea of a constitution carries overtones of political legitimacy: a constitutional order is a legitimate order, and a legitimate order is one where all relevant stakeholders are involved in governance, in one way or another. Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on Constitutionalization and International Law-making