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A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

Published on November 18, 2014        Author: 

Few would deny the momentous changes underlying Russell Buchan’s thesis about an emerging “international community.” After the end of the Cold War, international law came to accept ideas of governmental legitimacy glaringly at odds with the regime-agnosticism of earlier eras. New and newly robust norms came to address both how national leaders are chosen (the legitimacy of governments themselves) and the permissible range of governmental actions toward citizens (the legitimacy of government policies, primarily as they affect human rights). These norms clearly pointed to a liberal democratic mode of governing.

Where Buchan parts company with previous analyses of these phenomena, including my own, is his view that these changes reveal an entirely distinct “international community” acting within the broader “international society.” My comments on his fascinating new book will suggest this hypothesis is unnecessary to explain these revolutionary developments and carries with it a substantial risk of both reductionist reasoning and undermining the very norms he examines.

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Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

Published on November 17, 2014        Author: 

Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

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International Law’s Enemy Within: Buchan’s “International Community” as Rival to the Positive Legal Order

Published on November 17, 2014        Author: 

In a 2012 essay honoring the work of the late Pieter Kooijmans, I observed: “Going forward, institutions purporting to implement international legal norms face a fundamental dilemma: Will they construe international law as a framework for accommodation among bearers of diverse conceptions – both liberal and non-liberal – of internal public order, or will they construe it as a device for imposition of a predominant vision of public order?”

Anyone who believes that I put the choice too starkly needs to read Russell Buchan’s Lieber Prize-winning book, International Law and the Construction of the Liberal Peace. In it, Buchan makes the case that an “international community” of exclusively liberal states operates within international institutions to supplant a more ideologically inclusive and sovereignty-respecting “international society.” The latter’s defeat at the hands of the former, if unevenly manifested at present, is inexorable: Buchan predicts that “non-liberal states will become increasingly marginalised” and that “the international community will encourage if not compel liberal reformation” (p. 224). Buchan’s account is at once explanatory, predictive, and prescriptive; while he presents his findings primarily as an interpretation of events, his characterizations leave no doubt as to his enthusiasm for the trajectory that he discerns.

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Announcement: EJIL:Live!; Additions to the UN Audio Visual Library; Events in London on International Judiciary and International Boundaries

Published on November 16, 2014        Author: 

1) In case you missed it: Episodes 1 and 2 of EJIL:Live! are available online, as is an audio episode of EJIL:Live! ExtraEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

The audio episode of EJIL: Live! Extra features a discussion between Guy Sinclair, Dapo Akande and Marko Milanovic of the English High Court decision in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB). That decision deals with detention in non-international armed conflicts and was previously discussed on the blog here, here, here and here.

2)  New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. The latest lectures were given by Judge Vagn Joensen on “An Introduction to the International Criminal Tribunal for Rwanda and its Impact on the Rule of Law in Rwanda” and by Professor David D. Caron on “Understanding Why International Courts and Tribunals Look and Act as They Do”.

3)  The International Law Programme at Chatham House would like to invite you to the forthcoming event with Judge Kenneth Keith of the International Court of Justice, ‘Challenges to the Independence of the International Judiciary’. The event will take place on  Wednesday 26 November 2014, from 17.30 to 18.30 at Chatham House in St James’s Square, London. Attendance is free, but prior registration is required. For further details and to register see here.

4)  London International Boundary Conference 2015 Call for Papers – Deadline 31 December 2014. The London International Boundary Conference 2015, which will take place on 21-22 April 2015 at the Royal Geographical Society in London, has launched a call for papers. This conference will provide a unique and multidisciplinary insight into the complex world of international boundary and territorial questions.  Each panel will offer a balance of established expertise and emerging talent. The Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office invite any interested parties to submit their abstract to Clementine Lietar (clementine.lietar {at} volterrafietta(.)com) and Anass El Mouden (anass.elmouden {at} volterrafietta(.)com) by 31 December 2014. This abstract should be written in English and contain no more than 500 words. It should include the title of the paper as well as the name and contact details of the author. For more information on London International Boundary Conference 2015, please visit the website or email info {at} londoninternationalboundaryconference(.)com.

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International Law and the Construction of the Liberal Peace: An Introduction

Published on November 14, 2014        Author: 

I am delighted that the editors of EJIL: Talk! have agreed to host a discussion of my recently published monograph, which is entitled International Law and the Construction of the Liberal Peace and published by Hart. I am especially delighted that Professor Jean d’Aspremont, Professor Greg Fox and Professor Brad Roth have agreed to act as discussants. These scholars have been at the forefront of the debate on the relationship between international law and liberal democracy and, as is apparent from my book, their work has had a significant impact upon the way in which I understand international law and international relations. It is therefore an honour for me that they have taken the time to critically engage with the arguments that I pursue in the book. I intend to briefly outline the main ideas and arguments that are developed in the book and I do this with the objective of setting the scene for the discussion that follows.

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Discussion of Russell Buchan’s International Law and the Construction of the Liberal Peace

Published on November 13, 2014        Author: week and next we will be hosting a discussion of Russell Buchan’s book International Law and the Construction of the Liberal Peacerecently published by Hart. The book was awarded the 2014 Lieber Prize by the American Society of International Law for an outstanding monograph in the field of the law of armed conflict.

Dr Russell Buchan is a senior lecturer in international law at the University of Sheffield. He has published in leading academic journals in the field of public international law, with a focus on collective security, international humanitarian law and cyber security. Dr Buchan sits on the editorial board of the Journal of the Use of Force in International Law and the International Community Law Review. Dr Buchan is Co-Rapporteur for the International Law Association’s Study Group on Cybersecurity, Terrorism and International Law.

Russell’s book will be discussed, next week, by Brad Roth, Jean d’Aspremont, and Greg Fox. Tomorrow, Russell will start the discussion off with an introduction, and will conclude it next week with a response to the three discussants. We are grateful to all of them for their participation.

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The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

Published on November 12, 2014        Author: 

As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

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The United States and the Torture Convention: A Memo from Harold Koh

Published on November 11, 2014        Author: 

On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Read the rest of this entry…


Sleepwalking Again: The End of the Pax Americana 1914-2014, Part III

Published on November 10, 2014        Author: 

This is Part III of the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014. Parts I and II were published last week. The full version will be published in EJIL in a subsequent issue.

It is time to cry “Wolf” – since Europe finds itself with its basic, most fundamental, if often unstated, assumptions of security evaporating. Of course it would be fanciful, undesirable and unnecessary to imagine that the Pax Americana could be replaced by some form of Pax Europea. Unnecessary because the USA is not disappearing. But the evident  weakening of its constraining and restraining power — the Authoritativeness Deficit — has to be made somehow whole.

So what role for Europe? Surely it does not mean and should not mean that Europe would simply fill in the American gaps and play a slightly or significantly more sonorous second fiddle to the USA by, for example, making a heftier contribution to NATO. It means, in the first place, that Europe has seriously to reassess its own self understanding of its global responsibilities. Though this might seem a platitudinous and hence easy to achieve step, it is arguably the most difficult and crucial if, indeed, it is not to remain platitudinous and would represent a veritable shift in political consciousness.  In the second place it has seriously to upgrade its autonomous Global Authoritativeness, its own constraining and restraining power and from that, and in that, position interact with the USA and the rest of the world.  Not a superpower, but an indispensable power. It is a tall order but  setting for a moment politics aside, not an impossible one, since the actual toolkit does not need to be created ex nihili.

Sure, militarily, Europe’s credibility is risible, and has been so for long. Think Bosnia and Kosovo, think even Libya. But it is in the paradoxical position that militarily, the European whole is smaller than the sum of the parts. This well known paradox, the result of national interests, jealousies, pride, inertia not to say pettiness, is startling, but it is also a silver lining since there is a huge amount of already existing capacity simply terribly badly utlized. Europe’s economic clout, as a trading bloc, is second to none, greater than most and potentially a formidable tool of foreign policy and security, glimmers of which could be witnessed as Europe finally began to get its act together in the Ukraine crisis, but therein lies the rub – its ability to get its act together. Politically, too, one does not start from zero. United (when it is) in its rich diversity offers a veritable European foreign policy an interesting, even unique potential of foreign action utilizing historical ties and connections of its various Member States as points of entry, bridge and alliance building towards friend and foe alike and the ability to converse with nuance and in multiple political idioms. Morally, both nationally and in the form of the European Union Europe has effectively shed its colonial baggage and it does not carry nearly the weight of suspicion with which US foreign policy is encumbered. Effectively melded together and used with the kind of adroitness which some of the individual Member States are renowned for, simply underscores the potential of existing capacities even before any serious upgrading is to take place. One is not starting from Zero. Read the rest of this entry…

Filed under: Editorials, EJIL, European Union
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ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!

Published on November 10, 2014        Author: 

Last week Thursday (Nov. 6), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see ICJ Press Release). Judges Mohamed Bennouna (Morocco) and Joan E. Donoghue (United States of America) were re-elected to the Court. In addition, Professor James Crawford (Australia) and Kirill Gevorgian (Russian Federation) were elected as new members of the Court. There are five vacancies on the International Court of Justice every 3 years, including this year. However, for the second time in a row in regular elections for judges at the ICJ, the two organs of the UN charged with electing the judges have been unable to agree, at least initially, on the list of judges elected to the Court (arguably, the third time in a row if one includes the situation in the 2008 elections described below). This year, as was the case in the last regular elections in 2011 (on which see previous posts here and here), the two organs have suspended voting until a later date, after several rounds of balloting in each organ failed to produce a fifth candidate that was elected by absolute majority of both organs (see UN Press Releases here and here). The General Assembly and the Security Council will meet on November 17 to resume voting.

Under Articles 4, 8 and 10 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of the General Assembly and the Security Council. An absolute majority in the Security Council for the purpose of elections to the ICJ has been interpreted in practice as meaning eight votes, rather than the nine required for other Council decisions (see Opinion of the UN Office of Legal Affairs 1984 Juridical Yearbook 173, at 175, para. 8, also available here). Also, under Article 10(2) of the Statute, no distinction is drawn between permanent and non-permanent members (i.e there is no veto).  The two organs meet separately, but concurrently, to conduct ICJ elections. Once five have obtained an absolute majority in one organ, the President of that organ will notify the President of the other organ of the names those candidates. Although each state member can only cast 5 votes in each organ it is mathematically possible, and in fact often happens, that more than five candidates will obtain an absolute majority in one organ. [For example, there 75  votes available in the SC – 15 states  x 5 votes each. If there are 7 candidates who only need 8 votes each, all 7 can obtain 8 votes, which only totals 56 of the available votes.]  It is the practice of both organs that only when five candidates have obtained an absolute majority is the result to be communicated to another organ. A proposal to select the five with the highest votes was previously rejected in the practice of both organs  [see Hogan, “The Ammoun Case and the Election of Judges to the International Court of Justice”, (1965) 59 American Journal of International Law 908]. When 6 or more candidates obtain a majority, the ballot is rerun with all candidates.

In the elections held on Thursday Nov 6, the General Assembly conducted seven rounds of balloting and it was only in the seventh round that only 5 candidates obtained an absolute majority with Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) receiving an absolute majority, in addition to the four other candidates mentioned above. However, in the Security Council, where four rounds of voting took place on Thursday until only five candidates received a majority of votes, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in addition to the four candidates named in the first paragraph. In the seventh round of voting in the GA, she obtained only 2 votes less than the majority required in that body, while Mr Robinson received only 1 vote less than required for a majority in the Security Council. Read the rest of this entry…