magnify
Home Articles posted by Joseph Weiler

European Hypocrisy: TTIP and ISDS

Published on January 21, 2015        Author: 

I

For some, the Transatlantic Trade and Investment Partnership (TTIP) in and of itself has become in many European (and American) circles, the enemy: another manifestation of unchecked globalization, the march of Capital trumping social, environmental and other  rights, an unhealthy embrace of the Americans from whose clutches we have painfully managed to extricate ourselves, et cetera. Yes, there is some sarcasm or irony in the above, but visit the blogs and you will see where it comes from. My sarcasm should not be taken as a dismissal of all or any of these concerns. TTIP is far from Snow White. The concerns are not entirely fanciful. It is the final objective I oppose: a no-holds-barred attack on TTIP with the objective of tanking the whole agreement. If this is your view, do not waste your time here and skip to another item.

A wholesale defeat of TTIP, if achieved, will, I believe, be a big time Pyrrhic victory ̶ a hugely missed opportunity for the polities and the peoples of these polities.

I support the TTIP for two obvious and banal reasons. First, there is every reason to believe that on aggregate it will contribute significantly to an increase in welfare in both polities, enhance growth, contribute to stability and constitute another tool, in an embarrassingly empty toolkit, to combat future transatlantic-generated economic shocks. A large and often unspoken asset of TTIP rests not with the content of the various substantive disciplines but in establishing a culture of joint conversation, regulation and management. It will counter the litigious and confrontational culture of the WTO, where the EU and the USA find themselves typically as rivals and antagonists. Constructivist theory actually has something to say here as do the insights of Global Administrative Law scholarship. Read the rest of this entry…

 
Tags:

Roll of Honour and Masthead Changes

Published on January 20, 2015        Author: 

Roll of Honour

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but of course we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2014:

Tilmann Altwicker, Dia Anagnostou, Stelios Andreadakis, Asli Bâli, Arnulf Becker Lorca, Catherine Brölmann, Gian Luca Burci, Damian Chalmers, Cai Congyan, Kristina Daugirdas, Richard Gardiner, Lech Garlicki, Matthias Goldmann, Hans Morten Haugen, Laurence Helfer, Ian Johnstone, Alexandra Kemmerer, Jan Komárek, Dino Kritsiotis, Jürgen Kurtz, Ulf Linderfalk, David Malone, Petros Mavroidis, Frédéric Mégret, Carrie Menkel-Meadow, Joanna Mossop, Jens Ohlin, Jacqueline Peel, Cecily Rose, Arie Rosen, Nicole Roughan, Martin Scheinin, Iain Scobbie, Ingo Venzke, Steven Wheatley, Nigel White.

Masthead Changes

The growth and development of any organization, even a journal, depends on the strength of its foundations. In the case of EJIL, those foundations are represented by its Board of Editors and its Scientific Advisory Board. To maintain their strength, the EJIL Boards benefit from change and renewal. Thus, I would like to sincerely thank Anne Peters, who has stepped down from the Board of Editors, for her dedicated commitment and service to the Journal. Anne has now assumed a leadership role in the newly established Journal of the History of International Law. We wish the new journal (and Anne) every success. Thanks also go to Francesco Francioni and Hélène Ruiz Fabri who have come to the end of their term on the Board of Editors, but will continue their valuable contribution to the Journal in the Scientific Advisory Board. Dapo Akande, Anthea Roberts and the newly-elected ESIL President, André Nollkaemper, have joined the Board of Editors. Finally, we welcome Jean d’Aspremont, Jan Klabbers, Sarah Nouwen and Anne van Aaken to the Scientific Advisory Board.

Filed under: Editorials, EJIL
 

EJIL Volume 25:4–In This Issue

Published on January 20, 2015        Author: 

This issue opens with a short, reflective article by Jochen von Bernstorff on the proper role of international legal scholarship. Recapitulating themes and concerns sounded in other articles published earlier in this volume – see, especially, Anne Orford’s ‘Keynote’ and the article by Tilmann Altwicker and Oliver Diggelmann, both in issue 2 – von Bernstorff points to the problematic legacies of positivist 19th-century legal thought and argues that scholarship has the potential to act as a ‘cooling medium’ for international law and politics. In the next article in the issue, Kristina Daugirdas makes a not-dissimilar case for the importance of the Draft Articles on the Responsibility of International Organizations. Taking the 2010 cholera outbreak in Haiti as a case study, Daugirdas argues that the Articles may turn out to provide a useful focal point for ‘transnational discourse’ among states and non-state actors about the compliance of international organizations with international law, thereby ultimately accruing to their legitimacy and effectiveness.

Our third article, by Richard Bellamy, continues with the theme of the legitimacy of international organizations. Bellamy takes on political constitutionalist objections that international human rights courts, such as the European Court of Human Rights, lack democratic legitimacy. Rather than reject the premises of those objections he shows how an argument consistent with those premises may be constructed in favour of the European Court of Human Rights. The fourth article in this issue also relates political philosophy to international law. In his article, Oisin Suttle bridges the gap between global justice theory and international economic law, developing a typology of international coercion that promises to illuminate a variety of problems and positions in the regulation of international trade. Look out for the EJIL: Live! interview with Oisin Suttle in which we discuss some of the issues raised by this stimulating article.

Under our regular EJIL: Debate! rubric, Lorand Bartels brings us back to the legal obligations of international organizations. Bartels’ article considers the human rights obligations imposed on the European Union under EU law, in particular in relation to the extraterritorial effects of EU policy measures; and Enzo Cannizzaro provides a thoughtful Reply. The debate will continue on EJIL: Talk! with a Rejoinder by Lorand Bartels to Enzo Cannizzaro. Readers are invited to join the discussion there.

Read the rest of this entry…

Filed under: Editorials, EJIL
 

Christmas Reading? Christmas Gifts? Some Suggestions from the Editor-in-Chief

Published on December 19, 2014        Author: 

The following is not a ’10 Best Books Published in 2014’. Looking back at the books (excluding novels) I read (and in some cases re-read) this year I have picked those which created that ‘everyone should read this book’ urge that we all experience from time to time. The selection is of course entirely subjective, but rigorous in one sense: knowing how precious reading time is, involving serious opportunity costs, I put on the list only those titles where I felt that I would not run the risk that someone would write to me and say: you wasted my time.

The order of books on the list is arbitrary.

Moshe Halbertal, Maimonides: Life and Thought, Princeton: Princeton University Press, 2013

Of Maimonides it has been said endlessly that from [the great Biblical] Moses to Moses [Maimonides] no one has arisen as Moses. (Trust me, it sounds a lot better in pithy Hebrew – Momoshe ad Moshe Lo Kam KeMoshe). A son of Cordoba (1138) he spent the central part of his life in Cairo where he died in 1204 and was then buried in Tiberius. Renaissance Man (long before the Renaissance) he was and remains one of the greatest Jewish teachers, scholars, legal decisors, philosophers (in the Aristotelian tradition) and physicians. His codification of Jewish Law has remained normative till this day and his Guide to the Perplexed is part of the canon of medieval philosophy and is hugely rewarding to anyone today (all too few, alas) interested in virtue theory. The story of his life, an exile from Caliphate Andalusia and ending as physician to the Crown of Egypt, is not only riveting but offers a window to a world of, inter alia, Islamic glory, which is not often known beyond a small circle of scholars.  Read the rest of this entry…

 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part III

Published on November 10, 2014        Author: 

This is Part III of the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014. Parts I and II were published last week. The full version will be published in EJIL in a subsequent issue.

It is time to cry “Wolf” – since Europe finds itself with its basic, most fundamental, if often unstated, assumptions of security evaporating. Of course it would be fanciful, undesirable and unnecessary to imagine that the Pax Americana could be replaced by some form of Pax Europea. Unnecessary because the USA is not disappearing. But the evident  weakening of its constraining and restraining power — the Authoritativeness Deficit — has to be made somehow whole.

So what role for Europe? Surely it does not mean and should not mean that Europe would simply fill in the American gaps and play a slightly or significantly more sonorous second fiddle to the USA by, for example, making a heftier contribution to NATO. It means, in the first place, that Europe has seriously to reassess its own self understanding of its global responsibilities. Though this might seem a platitudinous and hence easy to achieve step, it is arguably the most difficult and crucial if, indeed, it is not to remain platitudinous and would represent a veritable shift in political consciousness.  In the second place it has seriously to upgrade its autonomous Global Authoritativeness, its own constraining and restraining power and from that, and in that, position interact with the USA and the rest of the world.  Not a superpower, but an indispensable power. It is a tall order but  setting for a moment politics aside, not an impossible one, since the actual toolkit does not need to be created ex nihili.

Sure, militarily, Europe’s credibility is risible, and has been so for long. Think Bosnia and Kosovo, think even Libya. But it is in the paradoxical position that militarily, the European whole is smaller than the sum of the parts. This well known paradox, the result of national interests, jealousies, pride, inertia not to say pettiness, is startling, but it is also a silver lining since there is a huge amount of already existing capacity simply terribly badly utlized. Europe’s economic clout, as a trading bloc, is second to none, greater than most and potentially a formidable tool of foreign policy and security, glimmers of which could be witnessed as Europe finally began to get its act together in the Ukraine crisis, but therein lies the rub – its ability to get its act together. Politically, too, one does not start from zero. United (when it is) in its rich diversity offers a veritable European foreign policy an interesting, even unique potential of foreign action utilizing historical ties and connections of its various Member States as points of entry, bridge and alliance building towards friend and foe alike and the ability to converse with nuance and in multiple political idioms. Morally, both nationally and in the form of the European Union Europe has effectively shed its colonial baggage and it does not carry nearly the weight of suspicion with which US foreign policy is encumbered. Effectively melded together and used with the kind of adroitness which some of the individual Member States are renowned for, simply underscores the potential of existing capacities even before any serious upgrading is to take place. One is not starting from Zero. Read the rest of this entry…

Filed under: Editorials, EJIL, European Union
 
 Share on Facebook Share on Twitter
Comments Off

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part II

Published on November 6, 2014        Author: 

This is Part II of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part I was published yesterday. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

Though one could call into question the wisdom or propriety of a whole variety of American actions of the past century, there was a justified sense that America was a guarantor of a kind of stability. In the most primitive sense this was the Pax Americana.

No more. There are, of course, no sharp temporal lines – an assassination in Sarajevo was a signpost, not a real cause. Still, 2014 is in contention to be judged by history as the watershed period, the culmination of a structural process signaling the demise of the Pax Americana.

We might think that we have been here before: Periods of American economic crisis, isolationism and lack of nerve have come and gone during the last hundred years. But my argument is that the current circumstance is different, at least in two unprecedented (if connected) ways.

First, we are actually not experiencing today American Isolationism and withdrawal, quite the contrary. In some respects we are witnessing heightened American engagement: Resetting relations with Russia, the Turn to Asia, frenetic efforts in the Israel-Palestinian context, direct and indirect activity surrounding events in Egypt and elsewhere in the Arab Spring, the pre withdrawal Surge in Iraq and ongoing commitment in Afghanistan and now with ISIS, the determined cultivation of Turkey, vocal diplomacy as regards sanctions against the Ukraine, the TTIP as a strategic asset, constructive and cooperative American involvement in the Trade Facilitation Agreement and a renewed interest in Africa to mention but some aspects of contemporary US foreign engagement.

What is different is the cumulative impression of loss of American constraining power and influence. There is a growing discrepancy between engagement and results. Just go down list: Relations with Russia are at Cold War levels without the containment effect; Chinese bellicose posture vis-à-vis  Japan and in the South China Sea are at a level one would not have imagined a mere decade ago; the US clamorous humiliations (no other word is strong enough) in reigniting the Israeli-Palestinian Peace Process and having any impact whatsoever on the bloody Gaza conflagrations; relations with Egypt far more complex than ever before; the collapse in Libya and general American impotence to predict or shape the post Spring events; Iraq in disarray with America scurrying to seek alliances with yesteryear’s enemies in the face of the true Syrian debacle (and a no-one-dare-to-say-what-just-about-everyone-is-thinking: the good-old-days-of-the-secular-Saddam-regime); the American would-be and well deserved dividend in Afghanistan all but written off; a Turkey in which America has lost even the semblance of an ally; the inability of the US to have a united front with the EU on sanctions – it took the Malaysia airline catastrophe to bring Europe around, not American pressure; the TTIP in the doldrums its requiem quietly being composed; the collapse (temporary one hopes) of the Bali Trade Facilitation Agreement (itself a fig leaf to the failed Doha) at the hands of India, American pressure and diplomacy notwithstanding; and America in Africa? How do you spell that in Chinese? Read the rest of this entry…

Filed under: Editorials, EJIL
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part I

Published on November 5, 2014        Author: 

This is Part I of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part II will be published tomorrow. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

I think it is difficult to contest that the most important State player in world affairs over the last one hundred years – and consistently so over this period — has been the United States of America. WWI – into which, to use Christopher Clark’s justly celebrated book, we Sleepwalked – marks a useful starting point. It is not only the fairly important  role America played in bringing  WWI to an end that signals the beginning of this era but the no less important role it played in shaping the aftermath. Wilson’s 14 points were considered at the time “idealist” by some of the “Old Powers.” But by dismantling the Ottoman Empire through the principle of Self Determination (not at that time a universal legally binding norm) the scene was set for the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the second half of the Century. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights in the wake of WWII – two lynchpins of our current world order.

That opening gambit to the American century is emblematic of  the entire Pax Americana epoch: American action in the international sphere has frequently been driven by a strong dose of idealism (to be sure sometimes misguided) mixed in with the normal self-interest which is the usual stuff of international relations.

I know that the various schools of ‘Realism’ tend to pooh-pooh any deviation from interest analysis in international relations. Generally speaking I find the emphasis on interest/power as an explanatory device to human affairs, to the exclusion of almost all other motivations, as laughably reductionist in international affairs as it is in other domains of human action. At its extreme it is rooted in a vision which denies in principle the possibility of altruism, a position which makes a mockery of the tragic complexity of the human condition. This is as true, even if to some both counter intuitive and discomforting, in the case of the conduct of American foreign policy.

There may be an irony in using the expression Pax Americana.  Read the rest of this entry…

Filed under: Editorials, EJIL
 

After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done. Read the rest of this entry…

 

Peer Review Redux

Published on November 4, 2014        Author: 

A word on the continuing crisis in peer review. EJIL is committed to upholding the highest standard of peer review, both as a guarantee of the quality of articles we publish and because we are aware of its importance to authors who are seeking appointment or promotion. As previously explained – see my earlier Editorial, in vol. 23, issue 2– it is increasingly difficult to find external referees who both meet our yardstick of excellence and are willing to give time to this selfless service. I wrote then that it was not infrequently the case that the first and second and even the third external referee to whom we turned would decline our invitation, whilst the unfortunate author, not unreasonably, became incensed at the length of time taken to reach a decision. Since then, we have on occasion had the experience of having six or seven potential reviewers decline before securing one who is willing to take up the task! And then of course more time passes while we wait for the review to be turned around …

These are egregious cases. The vast majority of reviews are, thankfully, completed on time and decisions made on manuscripts within a reasonable timeframe. We are grateful for the sterling services of our reviewers, some of whom we call upon regularly. We now acknowledge them in our annual Roll of Honour (published in the first issue of each volume) and offer them a free one-year online subscription to the Journal as a token of our appreciation. We welcome other suggestions to improve our review procedures while maintaining their integrity. In the meantime, we beg our authors to be patient with the process.

Filed under: Editorials, EJIL
 
 Share on Facebook Share on Twitter
Comments Off

EJIL Volume 25:3–In This Issue

Published on November 3, 2014        Author: 

This issue offers another abundance of pioneering scholarship in diverse aspects of international law. It opens with an article by Jan Klabbers that traces the emergence of the now-orthodox functionalist theory in international institutional law, finding its origins in ‘an encounter with colonial administration’, and specifically in the early 20th-century writings of the American political scientist Paul Reinsch. In her article, Michelle Leanne Burgis-Kasthala likewise engages with important post-colonial themes in critical international law scholarship, but does so through a methodologically innovative ethnographic study of statehood narratives among Palestinians working in international law and human rights. Next, Mark Chinen, urges a reconsideration of the law of state responsibility in light of complexity theory. An article by Joost Pauwelyn, Ramses Wessel and Jan Wouters follows, examining the stagnation of formal international law, assessing the reasons for the rise of more informal forms of international lawmaking, and considering a range of possible responses. Finally in this section, Mónica García-Salmones Rovira’s article examines the ‘turn to interests’ shaping positivist international legal theory, as exemplified in the writings of Lassa Oppenheim and Hans Kelsen. A Reply by Jörg Kammerhofer contests the centrality of ‘interests’ in the work of Kelsen, as well as the methodology employed to discover it, and is followed by a Rejoinder by García-Salmones Rovira.

In Roaming ChargesMoments of Dignity, we feature a photograph entitled Keepers of the Sultan’s Treasures, shot in Brunei’s Regalia Museum.

Another important entry in our occasional series, The European Tradition in International Law, focuses on the Russian/Estonian jurist F. F. Martens. Lauri Malksöo provides an overview of Martens’ life, thought, and reception in international legal scholarship. Rein Müllerson draws parallels between issues in Martens’ time and our own. Rotem Giladi offers an original, critical reading of Martens’ most signal contribution, the clause to which he gave his name. And Andreas Müller examines Martens’ doctoral thesis on The Office of Consul and Consular Jurisdiction in the East, in light of the 19th-century dichotomy of civilized and non-civilized nations.

Under our rubric Critical Review of International Governance, Shashank P. Kumar and Cecily Rose present a quantitative empirical study of lawyers appearing before the ICJ. Read the rest of this entry…

Filed under: Editorials, EJIL
 
 Share on Facebook Share on Twitter
Comments Off