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Home Archive for category "EJIL Book Discussion"

Response to Roth, D’Aspremont and Fox

Published on November 19, 2014        Author: 

I formulated the central thesis of this book at the height of the ‘liberal confidence’ that was witnessed during the Bush and Blair administrations. At that time it seemed that a new world order was emerging and that a serious attempt was underway to fundamentally reorganise the political and legal structure of the world order. In short, what we were witnessing was a clash of normative orders between associations of states that I refer to as the international society and the international community.

Obviously, matters have become much more complex in recent years – in light of the rise of international terrorism, the global economic downturn, the emerging multipolar world etc – and much of the hype and hubris that once surrounded Bush and Blair’s ‘liberal confidence’ during the 1990s has now substantially faded. But I argue that although the liberal project has changed in form it has not changed in substance, and I continue to stand by my central thesis – namely, that the contemporary world order comprises opposing normative orders (the international society and the international community) and that it is the interface between these associations that provides a convincing explanation for why violations of international peace and security occur.

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A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

Published on November 18, 2014        Author: 

Few would deny the momentous changes underlying Russell Buchan’s thesis about an emerging “international community.” After the end of the Cold War, international law came to accept ideas of governmental legitimacy glaringly at odds with the regime-agnosticism of earlier eras. New and newly robust norms came to address both how national leaders are chosen (the legitimacy of governments themselves) and the permissible range of governmental actions toward citizens (the legitimacy of government policies, primarily as they affect human rights). These norms clearly pointed to a liberal democratic mode of governing.

Where Buchan parts company with previous analyses of these phenomena, including my own, is his view that these changes reveal an entirely distinct “international community” acting within the broader “international society.” My comments on his fascinating new book will suggest this hypothesis is unnecessary to explain these revolutionary developments and carries with it a substantial risk of both reductionist reasoning and undermining the very norms he examines.

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Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

Published on November 17, 2014        Author: 

Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

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International Law’s Enemy Within: Buchan’s “International Community” as Rival to the Positive Legal Order

Published on November 17, 2014        Author: 

In a 2012 essay honoring the work of the late Pieter Kooijmans, I observed: “Going forward, institutions purporting to implement international legal norms face a fundamental dilemma: Will they construe international law as a framework for accommodation among bearers of diverse conceptions – both liberal and non-liberal – of internal public order, or will they construe it as a device for imposition of a predominant vision of public order?”

Anyone who believes that I put the choice too starkly needs to read Russell Buchan’s Lieber Prize-winning book, International Law and the Construction of the Liberal Peace. In it, Buchan makes the case that an “international community” of exclusively liberal states operates within international institutions to supplant a more ideologically inclusive and sovereignty-respecting “international society.” The latter’s defeat at the hands of the former, if unevenly manifested at present, is inexorable: Buchan predicts that “non-liberal states will become increasingly marginalised” and that “the international community will encourage if not compel liberal reformation” (p. 224). Buchan’s account is at once explanatory, predictive, and prescriptive; while he presents his findings primarily as an interpretation of events, his characterizations leave no doubt as to his enthusiasm for the trajectory that he discerns.

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International Law and the Construction of the Liberal Peace: An Introduction

Published on November 14, 2014        Author: 

I am delighted that the editors of EJIL: Talk! have agreed to host a discussion of my recently published monograph, which is entitled International Law and the Construction of the Liberal Peace and published by Hart. I am especially delighted that Professor Jean d’Aspremont, Professor Greg Fox and Professor Brad Roth have agreed to act as discussants. These scholars have been at the forefront of the debate on the relationship between international law and liberal democracy and, as is apparent from my book, their work has had a significant impact upon the way in which I understand international law and international relations. It is therefore an honour for me that they have taken the time to critically engage with the arguments that I pursue in the book. I intend to briefly outline the main ideas and arguments that are developed in the book and I do this with the objective of setting the scene for the discussion that follows.

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Discussion of Russell Buchan’s International Law and the Construction of the Liberal Peace

Published on November 13, 2014        Author: 

http://www.hartpub.co.uk/coverimages/9781849462440.jpgThis week and next we will be hosting a discussion of Russell Buchan’s book International Law and the Construction of the Liberal Peacerecently published by Hart. The book was awarded the 2014 Lieber Prize by the American Society of International Law for an outstanding monograph in the field of the law of armed conflict.

Dr Russell Buchan is a senior lecturer in international law at the University of Sheffield. He has published in leading academic journals in the field of public international law, with a focus on collective security, international humanitarian law and cyber security. Dr Buchan sits on the editorial board of the Journal of the Use of Force in International Law and the International Community Law Review. Dr Buchan is Co-Rapporteur for the International Law Association’s Study Group on Cybersecurity, Terrorism and International Law.

Russell’s book will be discussed, next week, by Brad Roth, Jean d’Aspremont, and Greg Fox. Tomorrow, Russell will start the discussion off with an introduction, and will conclude it next week with a response to the three discussants. We are grateful to all of them for their participation.

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The International Court of Justice and the Judicial Function: Responses

Published on August 29, 2014        Author: 

I am very appreciative to Yuval Shany, Mary Ellen O’Connell, and Iain Scobbie for taking the time to engage so thoroughly with the arguments contained in my book; it has been a privilege to see my words and ideas through their own reactions, and to see the first public reactions to my writing.  The blog forum discussion makes it a challenge to respond fully to the many incisive points raised in their responses. However, with this brief reply, I wish to address some of the comments made, and in particular, to develop further a few arguments drawn from the book, in the hope of eliciting wider discussion. I will try to add address their points in turn.

Response to Yuval Shany

Yuval has chosen to engage primarily with the processual Part of the book (Chapters IV-VI, but also to a point the discussion on the Court’s exercise of certain powers in Chapter III). In that Part, I engaged with the Court’s deliberative process, its commitment to impartiality (and the particular form that such a commitment takes, given its institutional structure), and the justificatory reasoning the Court deploys in support of its conclusions, particularly its fairly strict adherence to its previous judgments. Yuval has pointed out my attempt to discern, if possible, a collective intent on behalf of the Court in drafting its judgments, and has rightly pointed out the ‘relatively low levels of doctrinal coherence’ in the Court’s judgments when taken as a whole, which make such a characterisation difficult.

He is correct that I emphasise the aspiration towards collective authority: it is an aspiration of the Court itself, which controls its own deliberative and drafting procedure, and which is found in its Resolution concerning the Internal Judicial Practice of the Court. The focus of my scrutiny over this particular question is not, however, merely a question of effectiveness: what I have sought to establish has been how the Court’s procedures, composition, and justificatory reasoning have together been tailored to secure the maximum possible authority for the Court qua institution. Given the fragility of certain of the Court’s institutional realities (raised by Mary Ellen, and to which I will turn shortly below), and the Court’s emphasis on its collective, universal and general character within the United Nations framework (and the international legal order, more broadly understood), such a claim represents the abandonment of the idea of the Court as a limited, bilateral dispute settlement organ. And it is precisely the fact that the Court has constructed formal, procedural authority for itself—and has been successful in cultivating support for this vision amongst other international actors!—which is of heightened relevance.

For the Court to make a legitimate claim to such authority requires, equally, a clear vision of the international legal order and the political community to which this legal order belongs. Thus, in the last chapters of the book, I argue that the Court’s interpretation of substantive international law has not kept pace with its claim to institutional authority. Yuval is perhaps correct that some of the tensions in the Court on questions such as the role of judicial precedent, the completeness of international law, and the legal effect of obligations erga omnes and norms of jus cogens may be due less to a complex doctrinal debate than the retention of ideas ‘selected for [their] ability to justify the preferred outcome’, and that the preservation of the Court’s influence depended on the outcome rather than on the reasoning. That is precisely my point: that one cannot parse the Court’s judgments carefully without a heightened understanding of the context in which it operates. Read the rest of this entry…

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The Killer Whales of The Hague

Published on August 28, 2014        Author: 

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. Read the rest of this entry…

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On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

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Developing the International Legal Order or Fomenting Doctrinal Confusion? A Comment on The International Court of Justice and the Judicial Function

Published on August 26, 2014        Author: 

In The International Court of Justice and the Judicial Function, Gleider Hernández offers us an insightful historical narrative and theoretical perspective on the judicial function assumed by the ICJ. According to Gleider, many of the controversies on the bench, resulting at times in contradictory decisions and half-way compromise formulas, stem from an ideological struggle between conflicting institutional goals and competing visions of international law. Hence, the tension between the need to resolve specific disputes and the Court’s interest in developing international law may influence the choice of an interpretive theory to fill in normative gaps and address legal ambiguities; the tension between a state-centered and an international community-based understanding of international law may influence the Court’s decisions on the scope of application of the erga omnes principle; and the tension between the need to preserve judicial propriety and the interest in partaking in the project of maintaining the international legal order may explain, for instance, inconsistencies in the Court’s approach to questions of jurisdiction and locus standi.

Collective decision-making

In this comment, I wish to expand upon two aspects of the conflicting goals, competing functions and doctrinal tensions discussed in the book: the manner in which ICJ judgments are formulated and the effects of outside pressures on the Court. The deliberative process is the subject of Chapter IV of the book. Using, no doubt, some insights he was able to develop while serving as a legal clerk for ICJ judges, Gleider presents the process of formulating an ICJ judgment as a collective exercise in which judges “share collective responsibility both for the voting result and the expression of the judgment”. (p. 105) Such a process may have the merits of increasing the probability of getting the correct outcome (on the basis of the Condorcet Jury Theorem). However, it suffers from a “doctrinal paradox”attendant to the aggregation of judgments emanating from different doctrinal premises. That is, it may simultaneously reflect a meeting of judicial minds on the outcome of the case, and a disagreement on the legal basis underlying the said outcome, resulting in judgments lacking in doctrinal coherence or clarity.

Because of its collective decision-making dynamics, the Court’s judgments may actually exacerbate the confusion generated by the existence of competing goals, world visions, role perceptions, etc. The availability of an initial draft formulated by a small drafting committee does not provide a full remedy to the doctrinal paradox problem, as the composition of the drafting committee changes from case to case, and is thus likely to generate doctrinal paradoxes vis-à-vis earlier decisions whose doctrinal premises the new members of the committee do not fully share. Furthermore, the need for attaining a broad-as-possible consensus during judicial deliberations leads to a process of revising the initial draft, which may detract from its coherence and clarity, sometimes resulting in a final text that Gleider describes as characterized by a “lack of intellectual or logical cohesion”, and as “puzzling” and “emasculating”. (p. 108) Such a result may invite serious criticisms and chip away at the Court’s legitimacy in the eyes of important constituencies. International courts whose judgments-drafting processes are driven by powerful secretariats may thus be better situated than the ICJ to generate clear, coherent and persuasive judgments, which form over time a jurisprudence constante. The more focused mandate of certain specialized courts, such as the ECtHR or the ICC, also facilitates the process of prioritizing goals and identifying a constituency. That, in turn, reduces their risk of becoming entangled in the doctrinal paradox. Read the rest of this entry…

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