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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…

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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…

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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…

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New Issue of EJIL (Vol. 25: No. 3) Published

Published on November 5, 2014        Author: 

The latest issue of the European Journal of International Law (Vol. 25, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can also access those articles that are freely available without subscription. The free access article in this issue is Michelle Leanne Burgis-Kasthala’s “Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood”. Today and tomorrow, we will post the remainder of Editor-in-Chief Joseph Weiler’s editorial in this issue. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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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…

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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.

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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…

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New Issue of EJIL (Vol. 25: No. 3) Out Next Week

Published on October 31, 2014        Author: 

The latest issue of the European Journal of International Law will be published Wednesday. Beginning Monday, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents:

Editorial: Sleepwalking Again: The End of the Pax Americana 1914-2014; After Gaza 2014: Schabas; Peer Review Redux; In this Issue

 

Articles

Jan Klabbers, The Emergence of Functionalism in International Institutional Law: Colonial Inspirations

Michelle Leanne Burgis-Kasthala, Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood

Mark Chinen, Complexity Theory and the Horizontal and Vertical Dimensions of State Responsibility

Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

 

EJIL: Debate!

Mónica García-Salmones Rovira, The Politics of Interest in International Law

Jörg Kammerhofer, The Politics of Interest in International Law: A Reply to Mónica García-Salmones Rovira

Mónica García-Salmones Rovira, The Politics of Interest in International Law: A Rejoinder to Jörg Kammerhofer

 

Roaming Charges: Moments of Dignity: Keepers of the Sultan’s Treasures, Brunei Regalia Museum

 

 The European Tradition in International Law: F.F. Martens

Lauri Mälksoo, F. F. Martens and His Time: When Russia was an Integral Part of the European Tradition of International Law

Rein Müllerson, F. F. Martens – Man of the Enlightenment: Drawing Parallels between Martens’ Times and Today’s Problems

Rotem Giladi, The Enactment of Irony: Reflections on the Origins of the Martens Clause

Andreas T. Müller, Friedrich F. Martens on ‘The Office of Consul and Consular Jurisdiction in the East’

 

Critical Review of International Governance

 Shashank P. Kumar and Cecily Rose, A Study of Lawyers Appearing before the International Court of Justice, 1999-2012

 

Review Essay

Gleider I Hernández, The Judicialization of International Law: Reflections on the Empirical Turn. Review of Karen J. Alter. The New Terrain of International Law: Courts, Politics, Rights; Cesare P.R. Romano, Karen J. Alter, and Yuval Shany (eds). The Oxford Handbook of International Adjudication; Yuval Shany. Assessing the Effectiveness of International Courts

 

Book Reviews

Edith Brown Weiss. International Law for a Water-Scarce World; Laurence Boisson De Chazournes. Fresh Water in International Law; Pierre Thielbörger. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right (Sara De Vido)

Kate Miles. The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (David Schneiderman)

Emmanuelle Tourme-Jouannet. What is a Fair International Society? International Law Between Development and Recognition (Ruti Teitel)

Lawrence O. Gostin. Global Health Law (Stéphanie Dagron)

Timo Koivurova. Introduction to International Environmental Law(Birgit Lode)

 

The Last Page

Keith Ekiss, Vietnam

Corrigendum

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Social Capital and the Limits of Network Analysis

Published on September 29, 2014        Author: 

I want to start by thanking each of the commentators for their kind, forgiving and thought-provoking comments on my article, and by recognizing that the work of DaphaMichael and Tom set the foundations and served as the inspiration for this work. I will organize my responses into three different clusters:  methodology, extensions and other, more general comments.

Methodology

I will first address Tom’s comments on the record of appointment as a proxy for displayed preferences. Can we ignore the fact that an appointment does not necessarily indicate that the arbitrator was the appointer’s first choice? I like to think of this question as a job offer to a candidate who decides not to accept an offer. The truth may be that certain candidates are in high demand and that many companies are offering jobs to the same well-qualified candidates.  Hence it is possible that parties who nominate arbitrators and may be trying to enlarge the diversity of the pool of arbitrators in ICSID may be somewhat restricted by the broader market of arbitration professionals.  This is true especially where, as Michael points out (and as confirmed by arbitrators during my interviews), the compensation provided by ICSID is lower than that of other arbitration opportunities and venues.   This is a limitation of the assumptions that can be made from the ICSID appointments. We are left with only the record of appointments as a second-best proxy.

A second point raised by Tom as to why the mid-2000s witnessed the first appointments of today’s power-brokers is also relevant. We must take into consideration that these years saw a boom of investor-state cases and, hence, more appointments. It is also true that this is when we started seeing more awards discussed publically.  Although I did not report these statistics in this paper, measures that reflect the connectivity of the network start stabilizing and changing in less intense ways during this period.  Thus I’m not surprised that the network acquired self-organizing qualities during this time.  One plausible hypothesis for future exploration is how the development of transparency rules may have helped cement public knowledge of decisions and with that, some of the insights that come with understanding the decision-making philosophy of arbitrators.

On the methodology of determining the average compensation per arbitration of US$200,000, I admit that the number is not incredibly precise. However, it is the best approximation I could divine. I followed a complex, yet not foolproof strategy to arrive at what I consider a very rough average. First, I computed the amount in 2010 dollars from roughly 70 awards that provided information on compensation in my sample of ICSID and ICSID Additional Facility awards. I divided this amount by the months of duration of each case and averaged the result. Using the dollars per month estimate, I calculated the possible amount paid to an arbitrator on settled or dismissed cases based on an average duration of the case. I confirmed that this rough estimate was in the right ballpark with one scholar who has done extensive empirical work with ICSID data as well as through my interviews with arbitrators. It is not an exact appraisal, but what is relevant for the purpose of the article is whether ICSID’s rate completely changes the incentives to accept an appointment and hence whether the distribution of ICSID appointments is completely different from that of other institutions. We cannot know the answer to this question for certain, but with a grain of salt, my educated guess (taking into account what I gleaned from working at ICSID) is that it does not. Most appointments are accepted and most rejections occur when a conflict exists. In my experience it was only in very few cases that, for other reasons (such as being too busy) an arbitrator decided not to accept an appointment. Read the rest of this entry…

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ICSID Arbitrators: The Ultimate Social Network?

Published on September 25, 2014        Author: 

waibelMichael Waibel is a University Lecturer at the University of Cambridge.

Sergio Puig’s article offers a refreshingly new, thought-provoking analysis of the links between investment arbitrators. Who the parties appoint as arbitrators matters for how the investment treaty regime operates. Criticism of the appointment process in investment arbitration is widespread, yet rigorous empirical work on this important aspect of the investment treaty regime remains rare. Relying on the theoretical frame of social network analysis, Sergio sheds light on the interactions among ICSID arbitrators. His analysis suggests that a core group of 25 arbitrators enjoys disproportionate influence on the development of the investment treaty regime. To understand what animates the regime, it may suffice to analyse the preferences and political philosophy of these 25 ‘power-brokers’.

The Core-Periphery Divide and Underrepresentation

The core of the arbitration network is composed of 25 arbitrators. Members of this elite group are on average connected to 11.75 other arbitrators. The core’s cultural and legal homogeneity is striking: 14 Europeans, 4 Latin Americans, 3 Canadians, 1 New Zealander and only 1 US arbitrator. Similarly, among the top ten countries of origin of ICSID arbitrators overall, five are Euro-Atlantic states (US, France, UK, Canada and Switzerland) and five Latin American. By contrast, African and Asian arbitrators have rarely been appointed to ICSID tribunals, despite significant inward- and outward flows of foreign investment to and from Asia in particular. In such data-intensive work, minor errors are bound to creep in. For instance, in Figure 4, Vaughan Lowe appears as a US, rather than a UK national, and the 26th arbitrator in the core between Jonny Veeder and Jan Paulsson remains nameless.

The formal bond of nationality may be only a crude measure of arbitrator behaviour. As Sergio rightly highlights (p. 405), many arbitrators with nationalities of developing countries have received at least part of their legal education in developed countries (chiefly the UK, the US and France). Indeed, if one focuses on arbitrators who have spent most or all of their adult lives in a developing country and have not worked or received part of their educated in developed countries, the voice of developing countries in even less represented among ICSID arbitrators than the formal link of nationality would suggest.

Other demographics are also underrepresented among ICSID arbitrators, most notably women. 93 percent of all ICSID appointments were male arbitrators (p. 404). Given that Brigitte Stern has accumulated the highest number of appointments of any ICSID arbitrator, the share of female arbitrators is even lower at 5 percent (p. 405). Two female super arbitrators apart, women are at the periphery of the arbitration network. This gender imbalance mirrors the general characteristics of the entire arbitration network (p. 411).

Yanhui Wu and I have recently assembled data on a control group composed of more than 700 potential ICSID arbitrators, i.e. individuals with similar characteristics and qualifications to those who have already been appointed to at least one ICSID tribunal. Our control group includes current and former ICJ and WTO Appellate Body (AB) Members who, unlike some of their judicial colleagues, have yet to be appointed to an ICSID tribunal, and partners at leading arbitration practices in the same position. Ten former AB members and 18 current and former ICJ judges since 1990 have never been appointed. The following table compares some characteristics of the treatment and control groups. Read the rest of this entry…

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