Völkerrechtsgeschichten – Histories of International Law

Published on January 6, 2015        Author: 

This is the first of a series of posts on the history of international law that first appeared in German language on the new international law blog, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here. Further posts in the series will be published here shortly.

The history of international law comes in plural forms, and with multiple perspectives. International law does not have a history; it has histories. Martti Koskenniemi writes about ‘histories of international law’. His book ‘The Gentle Civilizer of Nations’ played a significant role in international law’s ‘historiographical turn’ around the turn of the millennium. Before this point, all had been rather quiet on the international legal history front. Back in 1952, the history of the discipline had been described as the ‘Cinderella of the doctrine of international law’ by Georg Schwarzenberger. The Cold War marked an ice age for the history and theory of international law. Pragmatists were dominant not only in practice, but also in scholarship. And ‘The Epochs of International Law’ by Wilhelm Grewes, published in German in 1984 and in English translation in 2000, were still firmly rooted in the pre-San Francisco era.

The study of international law has always involved historical and geographical background knowledge. Yet, the real move toward historical reflection only came with the growing awareness of the inadequacies of the ‘New World Order’ that had evolved after 1989. The emergence of new international institutions, the rapid proliferation of international and supranational courts, new human rights regimes and the blossoming of international criminal law were all soon overshadowed by Srebrenica, 9/11, transnational terrorism and the global financial crisis. The ‘fragmentation’ of the international legal order, the collision and competition of various normative orders, prompts questions about concepts and genealogies. Read the rest of this entry…

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Towards a Constitutional Law Framework for Investment Law Reform

Published on January 5, 2015        Author: 

Reforming international investment law and investor-state arbitration is a widespread concern. This is nowhere more manifest than in the heated debates (in Germany and elsewhere) about the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). Should there be investor-state arbitration between economies with well-functioning legal systems? Do we need an appellate mechanism to control arbitral tribunals? Who should serve as arbitrator and what ethical standards govern? And how should the substantive standards of investment protection be formulated in order to safeguard policy space for host states? These are some of the questions debated. At the same time, reforming international investment law is not only on the agendas of contracting parties, it also plays an important role for international organizations, such as the United Nations Conference on Trade and Development (UNCTAD), the Organisation for Economic Co-operation and Development (OECD), or the Southern African Development Community (SADC).

The Need for a Normative Framework for Investment Law Reform

The reform proposals that result from these various initiatives reflect the political pressure international investment law is facing; they also put pressure on states to remedy the discontents with the current system (see my earlier post on EJIL: Talk!). At the same time, the large number of reform proposals currently floated risk fragmenting investment law even further. This can be counterproductive if the aim is to arrive at an investment law regime that is both balanced and predictable. Furthermore, reform proposals themselves reflect underlying political and ideological preferences that may not be globally shared. What is needed therefore is a debate about these preferences and their impact on investment law reform. In other words: we need a broader debate about the normative framework for investment law reform.

As I argue in my Editorial of the latest Special Issue of the Journal of World Investment and Trade (entitled ‘Towards Better BITs? – Making International Investment Law Responsive to Sustainable Development Objectives’), this framework should not be seen only as a matter of (potentially short-lived and changing) economic policies that differ from one country to another. Instead, we should develop a framework for investment law reform on the basis of more fundamental principles, in particular if we are looking for ‘systemic reform’ that makes international investment law acceptable to all states. This requires – as Karl Sauvant and Federico Ortino rightly point out in a recent study – consensus-building processes about underlying assumptions and objectives for investment law reform. Read the rest of this entry…

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Announcements: Conference at Univ. of Hull on Customary International Law; Roundtable in London on Benefits and EU Law

Published on January 2, 2015        Author: 

1.  The McCoubrey Centre for International Law at the University of Hull will host a two day conference on 2 and 3 July 2015 on the topic of customary international law entitled “Making International Custom More Tangible”. The conference will be held at the University of Hull (UK) and will include panels chaired by leading academics and a key note speech by Sir Michael Wood, ILC Special Rapporteur on the Identification of Customary International Law. The conference is particularly aimed at research students and early career academics. Interested participants should provide an abstract of 500 words by 15 February 2015. Further information including the call for papers and facility for the online submission of abstracts are available here.

2.  Benefits and EU Law – Round table discussion. The City Law School is delighted to invite you to a debate organized under the aegis of the Jean Monnet Chair in European Law. The topic is Benefits and EU law – the law behind the story. The round table will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law). Speakers will be  Professor Damian Chalmers (LSE), Professor Niamh Nic Shuibhne (University of Edinburgh), Mrs Jacqueline Minor (Head of EU Commission Representation in UK), Professor Philippa Watson (City Law School and Essex Court Chambers). The event will be held at City  University London, College Building, St John Street, Room A130 on Monday, 26 January 2015 at 18:00. The event will take the form of a round table discussion with questions from the Chair and the floor. It will be followed by a wine reception. Attendance is free. You may sign up here.

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Our Most Read Posts in 2014

Published on December 31, 2014        Author: 

This has been another successful year for EJIL:Talk as readership of the blog continues to grow. We are grateful to you, our readers, for coming back to us again and again. A new addition to the European Journal of International Law this year has been the introduction of EJIL:Live! which is a series of video and audio podcasts released at the same time as the publication of each quarterly issue of the Journal. The video and audio episodes feature an in-depth discussion between the authors of one article that appears in the issue and EJIL’s Editor in Chief, Joseph Weiler. I have to say, on a personal note, that I have thoroughly enjoyed those discussions. To my mind, the spoken word, and the back and forth of dialogue, adds much value to the written text in the journal. They greatly enrich critical understanding of the author’s argument and also of the area in which it is situated. The authors not only explain the argument in their article, but also discuss the inspiration and motivations for writing the piece. In the discussion, the arguments are not only explored and challenged, but the authors are also pushed to explain the significance of the argument – why does it matter? how does it matter? There is much to be gained from listening or watching. In addition to discussion with authors, the audio podcasts also include a variety of news and reviews (including discussions from or about the blog).

EJIL: Live Extras! are shorter, in-a-nutshell, episodes which address a variety of topical and interesting issues. Earlier this month 3 episodes of EJIL:Live Extra! became available for viewing. They are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL) on the first 10 years of ESIL.

Below are our 20 most read posts of 2014. As is apparent from simply glancing at the list, Russia’s intervention in and subsequent annexation of Crimea was the issue that generated most interest among our readers this year.  We wish you a very Happy New Year and a happy 2015!

1. Daniel Wisehart, The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

2. Nico Krisch, Crimea and the Limits of International Law

3. Christian Marxsen, Crimea’s Declaration of Independence

4. Dapo Akande, The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

5. Jure Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

6. Douglas Guilfoyle, So, you want to do a PhD in international law?

7. Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy

8. Philip Leach, Ukraine, Russia and Crimea in the European Court of Human Rights

9. Lauri Mälksoo Crimea and (the Lack of) Continuity in Russian Approaches to International Law

10. Dapo Akande, Appeal from the Ukrainian Association of International Law Read the rest of this entry…

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Editor’s Book Choices 2014: Christian J. Tams

Published on December 30, 2014        Author: 

I have 3 picks:

* Douglas M. Johnston, The Historical Foundation of World Order: The Tower and the Arena (2008)

* Mark Mazower, Governing the World: The History of an Idea (2012)

* W. Michael Reisman and Christina Skinner, Fraudulent Evidence Before International Courts and Tribunals: The Dirty Stories of International Law (2014)

An eye-opening ‘anti-tweet’: Douglas M. Johnston, The Historical Foundation of World Order. The Tower and the Arena:

My first pick is Douglas M. Johnston’s Historical Foundation of World Order: The Tower and the Arena, a hugely ambitious attempt to trace the role of international law in the gradual emergence of world order. Published posthumously (the author having completed the manuscript just weeks before his death), the book was quickly hailed as a major achievement, and in 2009 won an ASIL Certificate of Merit. But notwithstanding the early praise, I am not sure the book has been widely read or even noticed. If academic search engines are to be trusted, references to it remain scarce: to give just one example, it is quoted exactly once in the 1200 pages of the Oxford Handbook on the History of International Law, published in late 2012. (Once!)

This neglect is a mistake. Johnston’s book is exciting, engaging and eye-opening; it was my favourite read of the year 2014. Its historical sweep is vast, taking the reader on a journey from early Mesopotamian cultures into the new millennium. The focus is not (or not just) on international law as a set of rights and obligations, but on ‘the larger concept of world order’, understood to combine ‘an evolving, rather technical, “system” of laws, institutions and procedures designed for the inter-state community, … [and] a universal heritage of shareable values and sentiments that have gradually built the political and ethical foundation for a more equitable world society’ (pp. xvii-xviii). With a self-set brief like this, no reader can expect a comprehensive account, and Johnston’s treatment is eclectic and personal. This opens his particular account to criticism, but makes it a much more engaging read. It is, as Mary Ellen O’Connell said at the 2009 ASIL meeting, ‘the anti-tweet’ of legal scholarship. Read the rest of this entry…

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Editor’s Book Choices 2014: Does International Law Respond to Grassroots Inequality?

Published on December 29, 2014        Author: 

Crisis and stagnation in the global economy is the new normal, so say The Financial Times, McKinsey & Co., Business Insider, and the World Economic Forum at Davos in 2013. It is twelve days before the end of 2014 as I write this, and today’s new crisis is how the Russian rouble is spiralling dramatically in a deep currency crisis forcing Russia to take defensive measures against capital flight. Other main drivers of the world’s economy are not necessarily on safe footing. The Eurozone and the United States are still on the road to economic recovery from the global financial crises; Japan remains mired in recession despite the grand claims of ‘Abenomics’ to stem the tide; and this year, China – the main engine of global economic growth in the past decade – for the first time posted its slowest GDP growth rate in five years. Since the world plunged into global financial crisis around 2008, the promise and allure of globalization and global economic growth has waxed and waned, multinational and transnational business profit expectations have muted, and – as the International Monetary Fund put it rather bleakly in October of this year – growth will never be as good before the global crisis: “pessimism about the future was as strong [during the Great Depression] as it is now”. The International Labour Organization (ILO) dubs 2014 the year for the “risk of a jobless recovery”. If globalization is supposedly dying, as Princeton University Social Science Professor Dani Rodrik declares, is its inseparable fabric – international law – also headed for demise? In a postmodern crisis-saturated world now so riven by “economic insecurity and the rise of nationalism”, can international law still meaningfully respond?

My pursuit of this question throughout this year led me to three provocative books outside of international law – two in political economy, one in contemporary literature. These works helped me, at least, in provoking a reframing of the economic and social configurations we accept – and to a certain extent, author and promote – in international law, especially in international economic law specializations in trade, finance, and investment. Long before French economist Thomas Piketty’s Capital in the Twentieth Century became the rage in economic and political circles around the world in 2014, it was Nobel Prize laureate Joseph Stiglitz’s The Price of Inequality (W.W. Norton & Company, 2012) that made the powerful argument against the seeming inevitability of inequality, pointing out that so much of today’s debilitating income inequality – as seen in the example of the United States – is a product of the rents and inefficiencies created through the wrongful exercise of political power in legislative and regulatory processes. Read the rest of this entry…

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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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