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Editor’s Book Choices: André Nollkaemper

Published on December 24, 2014        Author: 

Gary J. Bass. The Blood Telegram. Nixon, Kissinger, and a Forgotten Genocide. New York, Toronto: Random House, 2014. Pp. 544. $16.95. ISBN: 9780307744623.

This may seem like an odd pick in a list of best books of the year for an international law forum. There is little in this book that expressly addresses international law, and the term ‘international law’ is only used a handful of times.

However, it is precisely the absence of law that makes the book compelling. It is a powerful reminder of the frailty of international law in international crises. The weakness of international law in such moments may have been particularly apparent in the Nixon era, but of course is more generally relevant.

The story that Gary Bass, a political scientist at Princeton, tells us is not totally unknown. [See for earlier discussions eg Srinath Raghavan, 1971: A Global History of the Creation of Bangladesh (Harvard University Press: 2013); Deborah Mayersen, Annie Pohlman Genocide and Mass Atrocities in Asia: Legacies and Prevention (Routledge, 2013). Also Samantha Power’s A Problem From Hell: America and the Age of Genocide (Basic Books, 2002) has relevant insights.] Much has been disclosed already about the decision of the United States in 1971 not to use its powers to stop the killing of an estimated 300,000 Bengals (most of them Hindus) by the Pakistani Army. The US also did not act to prevent the fleeing of about 10 million Bengals to India. The US found it more important to maintain good relations with the Pakistani president Yahya Khan so that he could serve as a liaison with China and prepare the way for the opening to China. Moreover, they wished to strengthen and prepare Pakistan for battle with Cold War enemy India. The US not only wilfully abstained from pressuring Yahya Khan to change his ways. Virtually the entire Pakistani military was equipped with American weaponry and depended on the United States to keep it operating.

What makes the account by Bass a must-read is not so much this tragedy as such, but the gripping and excruciating detail in which it zooms in on the doings of Nixon and Kissinger, who was at that time Nixon’s national security adviser.  Read the rest of this entry…

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Editor’s Book Choices: Jean d’Aspremont

Published on December 24, 2014        Author: 

Looking back at one’s readings over the last 12 months is a rather humbling exercise. We, international legal scholars, are supposed to be reading all the time, at least during these moments miraculously rescued from teaching, management and administration. In practice, even in these precious reading and reflection periods we do not properly read. Too often we skim rather than read. Too often we zero in on some carefully selected chapters or sections of books and form our opinions on the basis of rather limited samples. Too often we navigate books according to our research agenda (after having picked them in a similar way). The main explanation for this perennial reading attitude is that we, international legal scholars, read functionally, i.e. with a specific argument or project in mind. Albeit conducive to short-term efficiency and productivity, this functionalist approach to reading is obviously regrettable. Indeed, it rarely allows us to let our thoughts dawdle in the imaginary space created by the thoughts of others. But this is not the saddest part of the story. Running from one deadline to the other, we, international legal scholars, may even come to forget what we have read and only remember the argument or the project that our readings served. This is why looking back at one’s past year’s reading can make one feel like a marathoner who, on the finishing line, relishes his achievement but who, out of breath, is completely oblivious about the landscape that unfolded during the race. It is against the backdrop of such functional reading patterns of present day academia and the correlative oblivion that I let my choice be guided by three memorable traits or mindsets which I ascribe to some of the authors whose books I read in 2014: modesty, courage and inquisitiveness. It is the memory of these distinct traits or mindsets that revives my recollection of three specific books which I read thoroughly during the last 12 months. The following choice is certainly not meant as a personal charts or quality ranking. These three books are simply three works which did not leave me indifferent. That a book creates a feeling or an emotion with its reader is, in my view, a good sign. It is maybe the best that a book can ever achieve and indifference is probably the most tragic fate for a book, let alone a scholarly book.

Modesty: James Crawford’s State Responsibility – The General Part was published in 2013 but it took me until mid-2014 to seriously read it. It reads like a “synthesis” of the author’s past accounts of the conceptual and functional variations of the law of responsibility. This historical exposition is shrewdly constructed as to vindicate the author’s own vision of the doctrine in the framework of the International Law Commission’s work on State Responsibility which is in turn presented as a “modern synthesis” in which all the visions of the old Masters have coalesced. Read the rest of this entry…

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Editor’s Book Choices: Emerging from our Frames and Narratives: Understanding the World through Altered Eyes

Published on December 23, 2014        Author: 

We are all captured and framed by our background, our nationality, history classes in school, religion, experiences, language and common narratives. Psychology has shown that those frames might be an obstacle to communication, mutual understanding and might even lead to conflict. It is no different for the international community. Different frames lead to different understandings of situations, different attributions of motives by others, different fairness perceptions. Kant defined enlightenment as a “man’s emergence from his self-imposed immaturity”. One aspect of this immaturity, one could argue, is the lack of self-consciousness about one´s own frames. Learning about other peoples´ frames relativizes one´s own (in my view something to strive for in itself) – and may lead to tolerance. My own frame is clearly western European and I have no doubt that this influences how I see the world and how I perceive international law. Challenging our own frame can be a personal as well as a professional enrichment.

My latest experiences of this kind of relativisation came through two books which I would like to share. Both books are closely connected to the developments in international relations we are currently facing. First, the events in the Arab world, including the events of 9/11: both events call for a thorough understanding of the Arab World and Islam and its frames, narratives and history. Second, the rise of China in economic terms but also the increasing assertiveness of the “Middle Kingdom”: in order to better understand the reactions of China to western moves in trade and especially security.

The first book I would like to introduce is Destiny Disrupted: A History of the World Through Islamic Eyes by Tamim Ansary (2010). It is an encompassing history of Islam and the Islamic world, starting with the birth of Mohammed. The book describes not only the religious development of Islam, helping to understand the different Islamic denominations and their conflicts between Shia and Sunni (including other branches such as Sufis) but also vividly describes the political and economic development of the Islamic world. History helps us to understand the disastrous developments in the Middle East nowadays including the attraction of Islamic State (IS) by its leaders´ self-proclaimed re-erection of a Caliphate (associated with the golden age in Islam). Read the rest of this entry…

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Editor’s Book Choices by Jan Klabbers

Published on December 23, 2014        Author: 

Editor’s Introduction: EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL:Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Last week, we began with our Editor-in-Chief’s selection.

I read quite a few academic books, and tend to read them cover to cover. Partly this is facilitated by being on a lengthy sabbatical: at the moment I spend little time teaching and, blissfully, even less on faculty committees. And partly I read books, and read them cover to cover, because I feel that books can do things that other manifestations of the written word (the journal article, the blog, never mind the tweet) cannot accomplish: most arguments need some space to develop in full, and need to include some empirical support (in whatever form) in order to be convincing – otherwise they remain mere opinions, as indeed is perhaps too often the case even with journal articles, never mind tweets and blogs. As always, there are opportunity costs: I may read books, but I read relatively few academic articles, and usually merely skim the handful of blogs I tend to follow.

That is not to say that articles are by definition flawed. It was no doubt appropriate for Hersch Lauterpacht to write about the Grotian tradition in article form – 300 pages on the topic would have been tedious. By the same token, The Function of Law in the International Community could not be addressed within the confines of an article – 30 pages on the topic would have remained superficial. Thus, there is a time and a place for various manifestations of the written word – even, I suppose, however reluctantly, for the tweet.

My readings tend to be eclectic, even when I read simply for relaxation: from crime and espionage novels to Nobel prize material. Likewise, my academic readings are eclectic, and often somehow related to whatever topic has sparked my interest. Some factors are constant: I try to keep up with the law of treaties, which is fairly easy since no one writes books about the law of treaties other than, sometimes, in waves of fashion: in the 1990s people wrote on reservations, a decade ago on treaty conflict, and currently on treaty interpretation. I also try to follow whatever comes out on the law of international organizations, and in particular on the underlying history and theory of institutional law. From a distance and usually with some delay, I try and keep up with the external relations law of the EU (one of the best books I read in 2013 was on this topic: the excellent study by Mario Mendez). And then I have an interest in ethics, in particular in trying to find a way of applying what is known as virtue ethics to international affairs, so not surprisingly, much of what I read at the moment is in one way or another related to this.

So too my favourite readings of 2014. Part of the reason why I think virtue ethics is of relevance resides in the fact that global governance by and large escapes legal scrutiny, a situation that is confirmed by the paucity of writings on international law and global governance. With this in mind, the publication of Eyal Benvenisti’s Hague Academy lectures in book form under the title The Law of Global Governance came not a moment too soon.  Read the rest of this entry…

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Let Not Triepel Triumph – How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order

Published on December 22, 2014        Author: 

The Italian Constiutional Court’s decision no. 238 of 22 Oct. 2014 (unofficial translation into English) already inspired a flurry of comments in the blogosphere (see in EJIL talk! Christian Tams (24 Oct. 2014) and Theodor Schilling (12 Nov. 2014); on the Verfassungsblog amongst others Filippo Fontanelli (27 Oct. 2014); on Opinio Juris Andrea Pin (19 Nov. 2014); on the Völkerrechtsblog Felix Würkert (11 Dec. 2014)).

In that Sentenza, the Corte refused to give effect to the ICJ’s judgment (in) Jurisdictional Immunities of the State (Germany v. Italy) of 3 February 2012, in which the ICJ had upheld the principle of state immunity against allegations of serious human rights violations of German state organs committed during the Second World War.

Sentenza No. 238 is important not only because it concerns the persisting tension between respecting (state) immunity and protecting human or fundamental rights (see for a recent publication Anne Peters/Evelyne Lagrange/Stefan Oeter/Christian Tomuschat (eds), Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015)), but – maybe even more importantly – because it concerns the relationship between international law (in the shape of a judgment by the ICJ) and domestic law, as applied by a domestic (constitutional) court.

Just the latest item in the sequence of domestic courts’ resistance against decisions of international bodies  

The Corte relied on its established case-law on the effects of European Union law, notably on the doctrine of controlimiti in order to erect a barrier to the “introduction” of the ICJ judgment into the domestic legal order: “As was upheld several times by this Court, there is no doubt that the fundamental principles of the constitutional order and inalienable human rights constitute a ‘limit to the introduction (…) of generally recognized norms of international law’ (…) and serve as ‘counterlimits’ [controlimiti] to the entry of European Union [and now international] law” (Sentenza No. 238, in “The law”, para. 3.2.). Read the rest of this entry…

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Announcements: CfP for ESIL Conference in Oslo; Pluricourts Fellowship in Oslo; International Criminal Law Fellowships; ICC Summer School in Galway; Frankfurt Investment Law Workshop

Published on December 20, 2014        Author: 

1.  ESIL Annual Conference 2015, Oslo – Call for Papers and Agora Proposals, Deadline: 31 January 2015. The 11th Annual Conference of the European Society of International Law (Oslo, September 10-12, 2015) will be hosted by the University of Oslo’s PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order. The annual ESIL conference has become one of the indispensable venues for European and international scholars interested in questions of international law. The conference is entitled “The Judicialization of International Law – A Mixed Blessing ?”. The conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. We will ask critical questions about how international courts and tribunals work, whether we need judicialization in new areas, alternatives to courts and tribunals, and if we should expect further judicialization in the coming years. The conference will feature plenary sessions, fora with invited speakers, and a number of agorae with speakers selected on the basis of a call for agora proposals and papers. The event will also offer poster sessions for early career scholars following a call for posters. Invited speakers include current and former judges of various international courts, as well as legal practitioners and scholars of several disciplines. For information on registration and the programme, please visit the conference website.

2.  PluriCourts Fellowships for 3-12 months in 2015 – 2016. Temporary positions as visiting scholars at postdoctoral level are available at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, a Centre of Excellence at the Faculty of Law, University of Oslo for 2015 and 2016. The duration of the contracts is from 3 – 12 months. The candidates must hold a doctoral degree in law, political science or philosophy. Application instructions may be found here. The visiting scholars shall focus on international courts and tribunals in one of PluriCourts’ thematic research areas, Human Rights, Trade, Criminal Law, Investment, and Environment. Contact: Director, Prof. Andreas Føllesdal or Adm. Manager, Aina NessøeDeadline for application: 18. December 2014. Applications should be sent to pluricourts {at} jus.uio(.)no. Read the rest of this entry…

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

Published on December 19, 2014        Author: 

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

The order of books on the list is arbitrary.

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

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

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Editors’ Choice for New Year Readings and Gifts

Published on December 19, 2014        Author: 

EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  We begin with our Editor-in-Chief’s selection.

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A Response to the Discussants on the Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

I begin by saying that I am extremely grateful to the contributors to this book symposium for kindly having taken the time to read my book The Evolutionary Interpretation of Treaties, and to commit to writing their very stimulating views of it. Given the richness of the comments provided by my colleagues, it would I think be impertinent for me to do more, at this stage, than to try to set out the reflections that their comments have prompted with me.

In writing my book, one of the things I tried to do was to stress the striking interpretative potential with which the Vienna Convention rules are pregnant. It is worth remembering that when counsel for the United Kingdom in what Lord Hoffmann in Matthews [2003] UKHL 4 at [28] referred to as ‘the great case of Golder’ tried to reign in the European Court of Human Rights, they did so by exhorting the Court that it was bound by the rules set out in Articles 31–33 of the Vienna Convention. It is safe to say that the strategy backfired.

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Running in Circles: A Comment on Bjorge’s Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

It was a pleasure to read Eirik Bjorge’s The Evolutionary Interpretation of Treaties. The book is well written and exceptionally well researched. Eirik demonstrates nothing less than an encyclopedic knowledge of the relevant case law and scholarship, and has seemingly read every single bit of text that the International Law Commission and its rapporteurs have produced on the question of interpretation. Eirik’s book is beyond question the most comprehensive examination to date of the issue of evolutionary treaty interpretation, and it fills an important gap in the literature.

While the virtues of the book are many, I cannot help but feel that, had Eirik chosen a different methodological path, the book could have been significantly more illuminating with regard to the nature of the phenomenon of evolutionary interpretation. This is not because I take issue with the main thrust of Eirik’s argument, namely that evolutionary interpretation is perfectly compatible with the rules of interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. Yes, it is – at least partly because the Vienna ‘rules’ are so broad and flexible that one can do (almost) whatever one wants with them.

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