Home Archive for category "EJIL"

Methodology and Misdirection: Custom and the ICJ

Published on December 1, 2015        Author: 

In Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, Stefan Talmon revisits the old debate over inductive and deductive methods for finding customary international law (CIL) to see whether we can now, fifty years after the original debates, learn any lessons about whether, when, and how the International Court of Justice uses each. What Talmon finds is that there are no clear patterns in how the ICJ uses each method, and that in fact, it is a third method, assertion, that best exemplifies the Court’s approach. What Talmon only hints at though are much broader lessons—that the ICJ’s failure to adopt a clear methodology for finding customary international law is only a symptom of a much broader problem, that the ICJ has never articulated a clear, coherent explanation of its authority to interpret customary international law or for whom. The ICJ’s efforts to find customary international law may simply be incoherent, a mirage, or even impossible.

The questions that Talmon’s study begs are why. Why isn’t the ICJ more interested in developing a clear methodology and why are there no patterns in the ICJ’s use of deductive or inductive methods? And why aren’t states more concerned? Why haven’t states demanded a clear methodology before treating ICJ decisions on custom as authoritative?

Methodology as Justification

Starting with the first question, the lack of clear methodology hints that the ICJ’s choice of induction, deduction, or assertion has little to do with methodology and everything to do with justification. When the Court invokes each one, it is attempting to justify its authority to interpret or find rules of CIL. Assertion makes this clearest—in the absence of any real evidence of a customary rule, the Court justifies it rules with appeals to “obviousness.” As Talmon wisely observes, both inductive and deductive methods are claims of derivative authority—the Court is not “making” or “choosing” a rule, but merely “finding” the rule made by states themselves in their interaction with one another. This is true whether the Court counts practice and weighs opinio juris or attempts to deduce a specific rule from recognized more general ones. It also tracks the requirement of article 38 of the ICJ Statute that the Court apply “international custom, as evidence of general practice accepted as law.” In essence, the Court‘s claim is that it is simply stepping into the shoes of states and making the same judgment they would make about specific rules and actions.

Negotiated Law and Adjudicated Law

The problem reflected in the ICJ’s methodological muddle is that this task may be impossible and the justification something of a fib. A court cannot step into a state’s shoes. A court forced to find a rule to decide a case is engaged in a fundamentally different activity than a state discerning a rule to guide its actions or jockeying for its favoured interpretation in relations with other states. Read the rest of this entry…

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In this Issue

Published on November 6, 2015        Author: 

This issue opens with a brace of articles on topics relating to the treatment of alternative dispute resolution in international institutional settings, albeit from quite different perspectives. Jaime Tijmes introduces the possibility of using final offer arbitration to settle disputes in the World Trade Organization, and explores how it might best be introduced. In contrast, Lorna McGregor uses the jurisprudence of the European Court of Human Rights to consider the kinds of tests that supranational bodies should and do use to determine the compatibility of a particular dispute resolution process with the right of access to justice.

In Roaming Charges, we feature a photograph by Janet McKnight of Places of Impasse: Scars on Beirut Structures That Refuse to Fall. We encourage our readers to submit photographs for publication to ejil {at} eui(.)eu.

The issue continues with two entries under our regular rubric, EJIL: Debate!. In the first, Catharine Titi argues that the European Union is in the process of introducing a new model of investment treaty that is ‘set to change the face of international investment law as we know it’, while in his Reply Martins Paparinskis introduces a note of caution regarding methodology, as well as a note of scepticism regarding Titi’s conclusions. The second EJIL: Debate! in this issue opens with an article by Devon Whittle, which applies Oren Gross’ ‘extra-legal measures model’ to conceptualize the UN Security Council’s Chapter VII powers as a form of emergency powers. In his Reply, Gross expands upon Whittle’s proposal to consider the application of the same model to another issue in international relations, namely unilateral humanitarian intervention. We invite comment on both debates on our blog, EJIL: Talk! Read the rest of this entry…

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Filed under: Editorials, EJIL, EJIL Analysis


Published on November 4, 2015        Author: 

I invited our Book Review Editor, Professor Isabel Feichtner, to write a Guest Editorial, which was published on the blog in July. As the reader will immediately note it would have been foolish, given the circumstances addressed in that Editorial, to wait for the next issue of EJIL and so I proposed that it be posted immediately on EJIL: Talk! where it was widely read and justly applauded. Given its importance, going well beyond the so-called Greek Crisis, we republish it in the current issue of the Journal as an official EJIL Editorial – which of course, as is the case with all Editorials in this Journal, represents the views of the author, not of EJIL as such.

It is our hope that this Editorial will stimulate a broader discussion on our role as international lawyers in today’s world of politics. To this end, let me make an open call for contributions, to the Journal and to EJIL: Talk!, on the role of international law scholarship in making sense of questions of how the refugee crisis, austerity politics, megaregionals, security politics, and so on interrelate, and how we as international lawyers can usefully intervene.

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Filed under: Editorials, EJIL, Financial Crisis

New Issue of EJIL (Vol. 26 (2015) No. 3) – Out Next Week

Published on November 3, 2015        Author: 

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


Nein!; The EJIL App (again); In this Issue


Jaime Tijmes, Who Wants What? – Final Offer Arbitration in the World Trade Organization

Lorna McGregor, Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

Roaming Charges

Janet McKnight, Places of Impasse: Scars on Beirut Structures That Refuse to Fall

EJIL: Debate!

Catharine Titi, International Investment Law and the European Union: Towards a New Generation of International Investment Agreements

Martins Paparinskis, International Investment Law and the European Union: A Reply to Catharine Titi Read the rest of this entry…

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Authors’ Concluding Response: Assessing the Case for More Plurilateral Agreements

Published on October 2, 2015        Author: 

Editor’s Note:  This is the authors’ concluding response in a series of posts discussing the article in the current issue of EJIL Vol. 26 (2015) No 2, by Bernard Hoekman and Petros Mavroidis. The original post is here. See also the  posts  discussing the article by Junji Nakagawa, Diane Desierto, and Geraldo Vidigal.

We have profited a lot reading the responses to our article by our three colleagues. Undoubtedly, this discussion will help us streamline our thinking going forward, since we believe the discussion regarding the institutional design of the WTO is about to start. Indeed, the passage from the Tokyo round ‘GATT clubs’ approach to the ‘WTO single undertaking’ was not discussed in depth among the institutional stakeholders. It is high time it takes place now, and this is what we hope our contribution will help happen.

We would like at the outset to set the record straight regarding property rights on this issue. We claim no originality in making a case for more plurilateral agreements (PAs). The main contribution on this front is a paper by Robert Z. Lawrence (2006), to which we refer a number of times in our article, and which, surprisingly had been left unanswered. Lawrence brought together discussion that preceded him, and provided a clear framework to think in concrete policy terms about clubs within the multilateral system. Academic literature on ‘clubs’ or ‘codes’ (the term used during the Uruguay round, in the GATT, and more generally, “minilateral” liberalization and cooperation goes back to the 1980s). A notable contribution on this score is B. Yarborough and R. Yarborough (1992), Cooperation and Governance in International Trade: The Strategic Organizational Approach.

Our basic point, simply put is that there are three factors that all bolster the case for PAs, and the ensuing ‘club of clubs’ approach originally advocated by Lawrence almost ten years ago. These factors are:

  • the proliferation of PTAs (preferential trade agreements) following the advent of the WTO, that is, at a time when tariffs are at an all-time low. Modern PTAs deal to a significant extent with regulatory matters;
  • the geo-political dynamics associated with the rise of China and other emerging economies; and
  • the fact that the trade agenda increasingly centers on regulatory differences, an area where the ‘single undertaking’ approach has not proved to be much of a success.

Read the rest of this entry…

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Whose Club Is It Anyway? PTAs 2.0 and the Creeping Non-Trade Rules

Published on October 1, 2015        Author: 

Editor’s Note: This post responds to Bernard Hoekman and Petros Mavroidis’ article in the current issue of EJIL Vol. 26 (2015), No. 2, titled “WTO ‘à la carte’ or ‘menu du jour’? Assessing the case for more Plurilateral Agreements”. For a post by the authors of the article, introducing their piece, see here. For other comments see here and here. For the authors’ concluding response, see here.

Bernard Hoekman and Petros Mavroidis’s article comes at an important time for the WTO. Alternatives to the multilateral trade talks have always existed, both outside the WTO (PTAs) and within it (PAs). However, the repeated failure of Doha talks to deliver meaningful results is leading PTAs to take an ever more important role. Their capacity to displace WTO rules has so far been limited, in no small part because they do not cover trade between the largest WTO Members. This is about to change, however, if TTIP and TPP really get off the ground – one could add to the list the China-led Regional Comprehensive Economic Partnership (RCEP). We may call these agreements PTAs 2.0. Both the US and the EU have been signing similar deals with third parties over the past two decades. A PTA 2.0 between the two would amount to a fait accompli to everyone else regarding a number of issues. To avoid a fragmentation of global rules, Hoekman and Mavroidis propose to expand the scope of intra-WTO plurilateral agreements, and incorporate the rules conveyed in PTAs 2.0 into WTO law, as PAs if necessary.

I should begin by saying that I am generally suspicious of the argument that the WTO has somehow become too big for consensus decision-making. It is not the world’s Cubas, Venezuelas and Nicaraguas that are halting trade talks (even if they can delay results for a few hours). If we are to go beyond consensus, it seems reasonable to state whose veto it is we expect to overcome. In this case, it seems that it is mainly large developing countries – in particular India, who has repeatedly been playing spoilsport in trade talks, but perhaps China and Brazil as well – who will be given an option between accepting the incorporation of PTAs 2.0 into the WTO or being left out of trade rules 2.0.

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In this Issue

Published on September 8, 2015        Author: 

This issue of EJIL offers another rich and varied menu of first-class international law scholarship. The issue opens with an important article by Bernard Hoekman and Petros Mavroidis, who make the case for reconsidering current WTO policy on plurilateral agreements. Weighing up their pros and cons, they conclude that such agreements offer an important mechanism, as an alternative to preferential trade agreements, for subsets of WTO members to move forward on issues of common concern. The second article in the issue, by Kirsty Gover, tackles the complexities of indigenous-state relationships in western liberal settler states, presenting a compelling theoretical analysis of the relationship between constitutional rights protection in those states and their obligations under on the UN Declaration on the Rights of Indigenous Peoples. Next, Ilias Bantekas sheds light on a fascinating and under-examined aspect of international legal history: the influence of Ottoman law as a source of general principles of law in post-Ottoman territories, specifically in relation to the international law of cession. Turning from imperial history to present-day global governance, Oren Perez’s innovative and carefully researched article examines the tensions arising from the hybrid political-legal and epistemic authority exercised by transnational regulatory scientific institutions. Finally, Stefan Talmon offers an acute analysis of the International Court of Justice’s methodology for determining the existence, content and scope of the rules of customary international law that it applies. Having distinguished the circumstances in which the Court applies both inductive and various forms of deductive reasoning, Talmon argues that in fact the main methodology employed by the Court is simple assertion.

The third annual Junior Faculty Forum for International Law, held at Melbourne Law School in July 2014, once again attracted an exceptionally high calibre of scholarship, and we are delighted to publish three pieces that were originally presented at that event. In his article on internet freedom, Daniel Joyce draws on historical experience and contemporary debates to explore the argument that the internet may require human rights protection beyond freedom of expression. Ilias Plakokefalos examines the problem of over-determination in the law of state responsibility, suggesting that the growing complexity of inter-states relations necessitates a rethinking of the fundamentals of this area of law. And Guy Fiti Sinclair proposes a new analytic framework for understanding the growth of international organizations as intimately linked with the cultural processes of state formation, with both impelled by a dynamic of liberal reform that is at once internal and external to law.

Roaming Charges in this issue leaves today’s world, crossing generations and time to recall our intellectual heritage. We are publishing the title page of Hans Kelsen’s doctoral thesis, the subject of which may come as a surprise to many of our readers.

This issue sees the return of our regular series, Critical Review of International Governance, with an article by Sungjoon Cho and Thomas H. Lee on the problem of parallel adjudication of a single issue, by the same parties, but in different legal systems.

The Last Page features a poem in French by Ekaterina Yahyaoui Krivenko entitled ‘Schizophrénie du droit international’.

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Filed under: Editorials, EJIL

On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…

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The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal

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The Spitzenkandidaten Exercise One Year Later – The Unsung Hero

Published on September 7, 2015        Author: 

A year has gone by since the last elections to the European Parliament. One significant innovation in those elections was the Spitzenkandidaten exercise.

At the recent fifth edition of the ‘State of the Union’ organized by the European University Institute I conducted a public interview with Vice President of the European Commission Franz Timmermans.

Vice President Timmermans and I reached the point where we touched on that perennial topic of the still existing deficiencies of European democracy, resulting, inter alia, in widespread indifference as expressed in the low turnout to the last European elections – 2014 scored the lowest turnout ever.

Here is an edited transcript from the interview.

Weiler:  […]  Part of the problem is that when people go and vote for  the European Parliament, they are not really being offered a real political choice (the way, for example, yesterday they were offered in the United Kingdom – Labour or Conservative.), neither as regards the policies that will be pursued nor as regards who will govern them. So the delicate question is whether the Union in its processes needs to become overtly more political? Do you think the bold, even though limited, experiment of the last elections to the European Parliament with the ‘Spitzenkandidaten’, who delivered here in this space [the Salone dei cinquecento of the Palazzo Vecchio] one of the televised debates, should be pursued and perhaps deepened as one of the ways of addressing that problem of citizen disengagement?

Timmermans:  Yes, first of all … the core of the problem also refers to one of my favourite authors, Hannah Arendt, who … actually, if you bring back the essence of some of her writings [says] ‘ It is not the anger of the minorities that hates us, it is the indifference of the majority that makes things difficult’: and here we have a problem at the European level because institutions that are made to represent the people through direct democracy, or like the Commission through other means, are very often very, very far removed from the political perceptions of the citizens. There is no (not yet) European ‘demos’, European political focal point, and we will need the engagement at the national level to make sure that we will bring people closer to what is European decision-making; so the odd contradiction between … there are …. there is the ‘supernational’ level and there is the national level, and what we are doing is trying to take away from one, or trying to resist taking it away from one … We are in this together! The only way forward is for national governments and leaders to take the responsibility for the European project, and stop blaming Europe for everything that goes wrong and taking credit for everything that goes right; and we at the European level should indeed, I think, be more focused towards making our institutions more political.

I was myself sceptical of the ‘Spitzenkandidaten’ idea, right?  I criticized it publicly several times and I am happy to admit it here today… I was wrong! Because of the Spitzenkandidaten idea, we now have a President of the Commission who is not appointed by consensus in the European Council, but who was appointed and elected by the European Parliament, by a political process. The European Council had to accept that political process; it makes the President of the European Commission far more independent than I have seen in the past. And Jean-Claude Juncker is a political leader who takes this very seriously indeed, and you can see this in the dynamic between the Commission and the European Parliament, between the Commission and the European Council … Let me just refer to what Jean-Claude said about migration;  this was not consensual language as far as the European Council is concerned.  He took his position in a political way; he took his leadership role in a very straightforward way and gave us a leadership role in the migration debate.

Weiler: Ladies and gentlemen, it is not every day that you sit next to a politician who is willing to say ‘I was wrong!’

Read the rest of this entry…

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