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Introducing a new EJIL:Talk! Editor – Diane Desierto and new Associate Editors – Geraldo Vidigal and Mary Guest

Published on August 27, 2015        Author: 

I have the pleasure of introducing new members of the EJIL:Talk! editorial team. Diane Desierto, who has already served as a contributing editor of the blog for the past two years, is now a full editor of the blog. Diane is Associate Professor of Law and Michael J. Marks Distinguished Professor in Business Law at the William S. Richardson School of Law at the University of Hawaii, where she is also Co-Director, ASEAN Law & Integration Center (ALIC). She has wide-ranging interests in international law, including various aspects of International Economic Law (World Trade Law, International Investment Law, International Finance Law, Law and Development), International Dispute Settlement, International Human Rights and Humanitarian Law and Association of Southeast Asian Nations (ASEAN) Law. Her writing on the blog is sufficient introduction of the quality and breadth of her scholarship.Diane Desierto

Last week, I wrote about Sadie Blanchard’s departure from the role of Associate Editor and commenting that she will be a hard act to follow. Well, we have not one but two new Associate Editors. They are Geraldo Vidigal and Mary Guest.

Geraldo Vidigal is a Senior Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.Vidigal_Geraldo_6-to-5_e40a40dc34 He has a PhD in Law from the University of Cambridge, an LLM from the Sorbonne Law School (Paris 1) and an LLB from the University of São Paulo. Prior to joining the Max Planck Institute, he was a Jean Monnet Fellow at the Global Governance Programme of the European University Institute in Florence and a Marie Curie Fellow within the DISSETTLE FP7 Research Project at Bocconi University, Milan. Geraldo’s research interests include international economic law and international dispute resolution, with a focus on the role of international courts and tribunals in the establishment and enforcement of international obligations. His publications include an article in the European Journal of International Law as well as a recent piece on the blog.

Mary Guest, comes to the blog with over 10 years experience in legal practice both as a senior associate at Clifford Chance and as Head of Legal – Commercial at the English Football Association. She has recently turned to international law and human rights law and has a Masters in International Law (with overall distinction) from the University of Cambridge.mary guest

In addition to writing their own pieces on the blog, Geraldo and Mary will help assist with approving and editing submissions, organizing symposia and book/article discussions; and collating and publishing news items

We welcome them all and look forward to their contributions to the blog.

 

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Alison Duxbury and Ian Johnstone: A Rejoinder

Published on August 21, 2015        Author: 

Delighted as I am to have received the insightful comments of Alison Duxbury and Ian Johnstone, I cannot write a very lengthy rejoinder, for the good reason that on most general matters, the three of us seem to be in broad agreement. In particular Johnstone and I are pretty much on the same page, it seems, our only quibble (if that is what it is) being about whether I go far enough in discussing the weaknesses of functionalism as principal-agent theory. Johnstone contends that I do not, and even with this I agree: functionalism is not even very good at discussing the relationship between international organizations and their member states, by and large because it refuses to acknowledge the political nature of this relationship. Functionalism aims to take the politics out of politics, and as usual, this affects its explanatory force. If the article focuses on other aspects of functionalism, it is because elsewhere I have made critical comments about such staples as the implied powers doctrine, the ultra vires doctrine, or the bias of functional necessity in the law on privileges and immunities, for instance in An Introduction to International Organizations Law (3rd ed, 2015). Beyond this, both Johnstone and I signal a move to discursive accountability (the adjective is his; I wish I had thought of it) driven largely by reputational concerns, and his rendition hereof as a ‘looser form of functionalism’ may actually give functionalism more credit than I would give it – I am not so sure that the result can still qualify as a form of functionalism.

Duxbury and I are also broadly on the same page, but she does pose some explicit questions. First (her last question) is whether functionalism has actually transformed, and here the answer must be in the negative: the process of transformation is still ongoing, and will no doubt go on for a few more decades. It is a glacial process, not an overnight transition, partly because too many have vested interests in not discarding functionalism altogether, and that includes international organizations and their staff: they benefit tremendously from the bias inherent in the law. It also includes the member states of organizations generally, who can write off governmental responsibilities and use organizations for scapegoating purposes, tut-tutting every now and then about ‘mission creep’ but secretly happy to use organizations as instruments of what Foucault would call governmentality: for most member states, having entities such as the World Bank or the International Organization for Migration function without too much oversight is much preferable to strict governmental control. It also covers pretty much all academics working on international organizations law (myself included), partly because of the way those academics are trained, and partly because functionalism generates the promise of a better world – and that is a promise that is hard to ignore.

To the extent that the above also answers Duxbury’s second question (why did functionalism become dominant?), the most difficult to answer is her first question: why trace the origins of functionalism back to two fairly obscure US-based authors from the early 20th century, rather than to later European writers such as, say, Schermers, or Bowett? And can I be certain that Reinsch and Sayre did influence their successors in quite the same measure that I think they did? Read the rest of this entry…

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Thank You Sadie Blanchard!

Published on August 21, 2015        Author: 

Exactly two years ago today, I wrote a post introducing Sadie Blanchard as a new (and our first) EJIL:Talk! Associate Editor. Today, I write to announce that Sadie is leaving EJIL:Talk! after a couple of years of the most wonderful service. Sadie leaves us to return to her alma mater, Yale Law School, where she has taken up a position as Research Scholar in Law and Private Law Fellow and will work in helping to run the newly established Yale Law School Center for the Study of Private Law. Her work at the Center will include her continuing research and scholarship on arbitration, including investment arbitration.photo: Marian Majik

I first met Sadie 7 years ago when she took a class of mine at Yale Law School. She was an excellent student and one of the leading lights in the Yale Forum on International Law. It was a pleasure to have her work for the blog and she has done a tremendous job! Much of her work has been behind the scene: editing (and improving!) posts, arranging book discussions, discussion on articles (like this week’s discussion on the article by Jan Klabbers), liaising with contributors, sorting out technical issues – all the things that make the blog work well! We are immensely grateful to her for all her work. She will be a very hard act to follow!

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Are Functionalism’s Flaws Fatal?

Published on August 20, 2015        Author: 

Jan Klabbers’ two decades of “obsession” with functionalism as a theory of international organizations law (IOL) pays off in this article. It is a highly perceptive analysis of the evolution of functionalism, arguing that it made sense when created more than a century ago, but its explanatory and prescriptive power began to erode almost immediately as the nature and impact of international organizations (IOs) changed. He argues that functionalism helps to understand the relationship between IOs and member states, but not relations within an organization or between the organization and third parties. More radically, Klabbers challenges the functionalist assumption that all activities of IOs are beneficial or benign. Not only is this factually wrong, but it also serves to obfuscate the impact of IOs by presenting them as “neutral” “apolitical” and “purely technical” creatures (p. 18). This makes it difficult to hold them accountable for they wrongs they commit, like the cholera outbreak in Haiti, let alone for perpetuation and propping up “an unfair global structure” (blog).

Like much of his work, Klabbers turns a critical eye on the “problem-solving” approach to the study of international law and organizations, without losing sight of real world challenges the law and IOs struggle with and the pragmatic solutions they are struggling to find. His analysis of functionalism is an exercise in “reconstruction” (p. 22). In the hands of a lesser scholar, this can be a risky strategy because it can tempt one to (re)construct a straw man for the purpose of debunking it. Klabbers avoids that trap by a careful reading of seminal texts and a persuasive interpretation of how functionalist theory has informed the actual practice of IOL in the past and today.

In this comment, I will: a) extend Klabbers’ critique in one area (the weaknesses of principal-agent theory); b) elaborate on it in another (IO accountability and responsibility); and c) based on the above, conclude with some thoughts about the question he asks at the end: must functionalism be discarded or can it adapt?

I agree that principal-agent (PA) theory only takes us so far in trying to understand IOL. As Klabbers points out, it does not capture inter-organizational dynamics well, nor does it have much to say about an organization’s relationships with outsiders, like non-members (consider the AU’s relations with western powers), non-state actors (such as relations between UN peacekeepers and rebel forces), or individuals. Even more damning – and this is where Klabbers critique does not go far enough – PA theory does not adequately explain or prescribe for what it purports to cover: namely the organization’s relationship with its members. Read the rest of this entry…

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The Transformation of International Organizations Law

Published on August 18, 2015        Author: 

The law of international organizations, governing such topics as their powers, their membership rules, and their privileges and immunities, is dominated by a single theoretical perspective: the theory of functionalism. Yet for all its importance, functionalism as a theory has always remained under-explored and, so to speak, under-theorized. Relatively little is known about how functionalism is structured and how, in turn, it structures the law; relatively little is known about how it came about or how it developed over the years, and little attention has been paid to its strengths and weaknesses, both as normative theory and as explanatory theory.

My article, the first EJIL Foreword, aims to take stock of functionalism by delving precisely into the above-mentioned questions, and in doing so reflects the culmination of almost two decades of study and perhaps, some might say, obsession. The article’s three main parts discuss the nature of functionalism, its genesis, and its relative fall from grace, and while there is no main conclusion to be drawn (in that the piece describes and analyzes an ongoing process of transformation), some of its main points can be summarized as follows.

First, I contend that functionalism is a special kind of principal-agent theory, special in the sense that the principal is by definition collective, and special in the sense that the principal is invariably part of the agent: all organizations have a plenary organ in which the member states (the principal) are represented. One important ramification hereof is that functionalism is ill-equipped to address issues that do not emerge from the relationship between principal and agent or, or more colloquial terms, between organization and members. I identify two broad groups of relationships that fall outside functionalism’s purview: functionalism has little to say about the internal dynamics within an organization (e.g. relations between various organs, or between organization and staff), and functionalism has little to say about the relations of organizations with the outside world. And the latter in particular is of interest to the general international lawyer: it suggests that the responsibility of international organizations under international law cannot fruitfully be approached from a functionalist perspective, and further suggests that our available frameworks of thinking about organizations are inadequate to address such questions as whether organizations are bound by general international law. Functionalism, as devised and developed, never thought about such issues and, more importantly, never could have done so coherently at any rate: a theory focusing on the principal-agent relationships cannot accommodate other concerns, at least not without diluting its original focus. To put it strongly and in different terms, functionalism has a blind spot: the issue of control. Actors other than the member states have no means of controlling organizations. Read the rest of this entry…

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This Week: Discussion of Jan Klabbers’s ‘The Transformation of International Organizations Law’

Published on August 18, 2015        Author: 

Over the next few days, we will be hosting a discussion of the first annual EJIL Foreword, Jan Klabbers’s article “The Transformation of International Organizations Law,” which was published in volume 26, no. 1 of the European Journal of International Law (2015). The commentaries on his article will be by Alison Duxbury (Melbourne) and Ian Johnstone (The Fletcher School). We are grateful to all of them for participating in the discussion.

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Brexit: No Happy Endings

Published on April 1, 2015        Author: 

I can think of no ‘happy ending’ scenario to this unfolding saga: like malaria, it is a malaise that has nested since British accession back in 1973, and erupts from time to time, though the current eruption is potentially of fatal proportions.

One cannot overstate the damage that a full-fledged exit of Britain will inflict on the EU. The importance goes well beyond the specificities of the functioning of the Union. It will survive and continue to function, even perhaps in some respects with less engine-room screeching. But as a global presence in the world, shaping and reshaping the impact will be huge, and to the detriment of the UK, the Union and the world. And internally, though not much might change on the surface, it will at the deepest spiritual level of European integration – and make no mistake, at its core the European construct has always been more than a functional, utilitarian enterprise – the damage will be equally shattering.

There are many in Britain who are sceptical about the benefits of British membership. But if Brexit results from a referendum vote, it is quite likely that it will be an English exit majority, with the opposite outcome in Scotland – almost inevitably leading to a Scottish exit from the UK, a catastrophic result by all accounts for the UK.

This MAD-like scenario assures at least one thing – that there will be no facile poker-playing in any future negotiations, the stakes are simply too high.

Allowing Scotland a referendum on its status within the UK was, in my eyes, the best of the British mature democratic tradition. Many express doubts whether the decision (for what it is) to allow a referendum for continued EU membership would justify such accolades. It was, according to some, holding the country hostage to the internal politics of the Tories. I don’t share this view. The fact that the EU issue has remained for so long – forever – a potent part of UK politics, together with the recent impressive successes of UKIP, means, in my opinion, that at some point the people should be able to express themselves, on such a critical ontological issue, directly. Be that as it may, a referendum was promised and to withdraw it at this point would undermine even further the fortunes of the Union in the UK and would be grist to the mill of the most populist of voices. Read the rest of this entry…

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New Issue of EJIL (Vol. 26: No. 1) Published

Published on April 1, 2015        Author: 

The latest issue of the European Journal of International Law (Vol. 26 No. 1) is out today. This issue has two free access articles, Jan Klabbers’s “The EJIL Foreword: The Transformation of International Organizations Law” and Janina Dill’s “The 21st-Century Belligerent’s Trilemma.” 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. 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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25 Years of EJIL – A Retrospective

Published on March 31, 2015        Author: 

When planning first began to launch a journal of international law with a specifically European orientation the Berlin Wall was still standing. EJIL was born in a time of intense change – the first issue was published in 1990, the year of German reunification – and, indeed, the life of the Journal tracks our post-Cold War world. Twenty-five years later we celebrate EJIL’s birthday with a Retrospective – an exhibition in which visitors can glimpse not only the evolution of the Journal and the discipline but also in many respects the last quarter century in the life of international affairs and international law.

The exhibition, available on the EJIL and OUP websites, includes a main feature and some special exhibits. We selected, chronologically, year by year, two or more articles to represent each volume. Like curators of an exhibition we combed the EJIL archive, at times marvelling at the rich choice of articles and at times anguishing over the difficult and ultimately subjective selection. We tried to choose articles that would give a flavour of the world in which they were written, the diversity of scholarly approaches which has been a hallmark of EJIL since its inception and, plain and simply, a ‘good read’ even in some cases after many years.

A number of special exhibits complete the Retrospective. The EJIL Tables of Contents have been aggregated into one chronological file, providing a fascinating account of the evolving field of international law and its community of scholars. EJIL has always had an eye for young talent and readers may well recognize some of today’s most respected scholars in their more youthful productions. The Editorials, too, have been collated into a single file, reflecting different styles and sensibilities of our various editors. Our Book Review Editor, Isabel Feichtner, selected 25 book reviews, one for each year, memorable for the book or for the review, to create another special exhibit. Finally, the Roaming Charges photos and the Last Page poems have been collated into special exhibits.

We hope you will enjoy the Retrospective and join us in a toast to another 25 years of academic excellence and innovation in EJIL.

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In this Issue

Published on March 30, 2015        Author: 

This issue opens with the first entry under our new, annual rubric, The EJIL Foreword. Taking the ongoing debate concerning the United Nations’ role in the Haitian cholera tragedy as his starting point, Jan Klabbers presents a masterly tour d’horizon of the intellectual origins, current state, and future prospects of the law of international organizations. In the process, he reconstructs – and exposes the blind spots and biases – of a functionalist theory that he identifies as specific to and underlying that law.

In the next article in the issue, Janina Dill presents a novel framework for understanding the different set of demands made on states in war. Identifying ‘three logics of waging war’ – associated respectively with international humanitarian law, military strategy, and an individual rights-based morality – she concludes that the three cannot be reconciled, presenting war-making states with an irresolvable ‘trilemma’. On a related topic, but adopting a very different approach, Amanda Alexander presents a new and revisionist history of international humanitarian law, locating its origins in the work of a particular set of actors from the 1970s onwards. Bart Smit Duijzentkunst and Sophia Dawkins, draw from relational contract theory to construct an innovative model of arbitration in peace processes, and demonstrate the value of that theory and model through a set of carefully presented case studies. And Ulf Linderfalk’s short article on the perennially relevant topic of treaty interpretation adduces a series of well-chosen examples to elucidate the relationship between the aims and means of interpretation.

In Roaming Charges, the ‘Moment of Dignity’ is  a photograph that celebrates the small traditions we risk losing in our fast-moving world. The photographer is Martin Lestra, PhD researcher at the European University Institute. We remind our readers that submissions to Roaming Charges are welcome.

The articles section of this issue is rounded out by the return of two of our regular rubrics, EJIL: Debate! and Critical Review of International Jurisprudence, both addressing topics relating to the European Court of Human Rights. Under the first, we present Stéphanie Hennette Vauchez’s somewhat provocative article on the issue of gender balance within the Court, assessing the politics of the appointment process through a detailed analysis of the self-presentation by the 120 or so women who have applied for positions on the Court. We publish Replies by Françoise Tulkens and Fionnuala Ní Aoláin, both of whom have direct, personal experience of that process. Finally, Paolo Lobba surveys the development of the Court’s jurisprudence on Holocaust denial, which he argues has important implications for ‘denialism’ in relation to other core international crimes.
The Last Page, offering nourishment for the soul as well as the mind, presents a poem by Dimitri Van den Meerssche entitled ‘Calling Themis’.

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