Home Articles posted by Jan Klabbers

Favourite Readings 2019 – Industry? What Industry?

Published on December 12, 2019        Author: 


As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Jan Klabbers. You can read all the posts in this series here.


Looking back, I notice I have read a surprisingly large number of really good books this year, and from a variety of disciplines too. Still, it is a rather damning indictment of the current state of the academic industry that the most memorable works I have read this year have had no relationship whatsoever to formal notions of research projects”, funding schemes”, grant applications”, principal investigators”, or any other manifestation of the competitive bureaucratization of academic work in recent decades.

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On Reforming the World and Reforming Character

Published on January 10, 2019        Author: 

Guy Fiti Sinclair’s To Reform the World was, for me, one of the books of the year when it came out in 2017. It is a model of legal scholarship, and does two things very well that are oh so difficult to bring together. First, Sinclair is an excellent lawyer – he knows the law, he knows what to focus on and what to ignore, and what is more, he is interested in the law, both its doctrinal detail and its political role; sadly, this interest in the law is not always present with people interested in the politics of law. Second, and related, he brings out this political role with verve and cogency. The work is scholarship of the highest order, a credit to its author and to those who trained him. I find, in all honesty, little to comment sensibly on; this is one of those books (few as they are) which I wish I had written myself. One can of course always ask questions: why focus on the World Bank and not, say, UNHCR? Why not include the work of an organization that proclaims to exist outside and beyond the law, like the OSCE? Could the same type analysis be applied to an interest organization like, say, the International Olive Council? Those questions can always be asked – the world of international organizations counts at least 300 varieties, and we tend to look at some of them a lot more than at others. It is almost a disgrace, for instance, that not more is known about a hugely important global governance institution such as the International Organization for Migration, responsible for establishing border management practices across the world and even for running migrant processing centers on behalf of member states, but steadfastly ignored in the legal literature.

But it would be churlish to go down this path. Instead, I want to address an element that usually stays a little under the radar and to which I cannot attach a proper label. It has something to do though with the political role of legal academics. Sinclair, without advertising it and (blissfully) without posturing, adheres broadly to the critical school. He may not be a card-carrying crit, but his work is sensitive to and inspired by critical givens (the indeterminacy thesis, the oscillation of law between apology and utopia, the notion that law typically serves as a vehicle for someone’s political project, that sort of thing). There is a Foucauldian flavor to the work and Sinclair clearly has taken the critical revolution to heart. And the book is all the better for it; indeed, it would have been impossible to write To Reform the World without something of a critical mindset.

The obvious follow-up question then is, however, what next? If the law cannot be trusted to do what we have always been taught to expect from it, if it carries institutional biases and tends to favour some at the expense of others, then what are international lawyers to do? Some have been happy to just continue to point to biases and the role of the ideology of international law – the equivalent of Voltaire’s retreat into his garden. Others have pointed to the emancipatory potential latent in international law; and yet others have put forward the idea that international lawyers or decision-makers more generally have a role to play in ensuring that the negative effects of international law are mitigated, aiming to complement the sterile structures of the law with calls on individuals to operate with a minimum of common decency. Read the rest of this entry…

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Favourite Readings 2018: The Power of Words

Published on December 17, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we have selections from Jan Klabbers.

Somehow, 2018 has been for me a year of epistemic concerns, of wondering about the social, emotional and above all political power of language and words and concepts. Many of my favourite readings of the year are related to the exercise of power, legal and otherwise, by epistemic means: the exercise of power through the ways in which we use our concepts, our words; through the ways we express our thoughts, and the ways in which these thoughts come to lead a life of their own, relatively independent even from the work we originally wanted those thoughts to do. This runs like a red thread through all the academic studies on this list, and even, in perhaps less obvious ways, through the non-academic works as well, characterized as these are by their distinct use of language.

Perhaps the most gratifying book I read during 2018 is written by Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (2017). I am not the only one who thinks the book is excellent: a jury of the European Society of International Law awarded it the Society’s ‘book of the year’ prize, so I am in good company. Read the rest of this entry…


Readings 2016: On Politics and Ethics and Love

Published on December 29, 2016        Author: 

Editor’s Note: As in previous years, 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 we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. 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. Today we have Jan Klabbers’ selection.

Alice Kaplan, The Collaborator: The Trial and Execution of Robert Brasillach (The University of Chicago Press, 2000)

Aristotle already knew that people are political animals. Yet, he also realized that people are ethical beings, and for him, there was no necessary conflict between the two: the ethically flourishing person was one who was intensely and seriously political. In our days, however, that understanding has all but disappeared, with much political debate collapsing into partisan positions where it is considered more important to keep the ranks closed and emerge victorious over opponents than doing the right thing or somehow finding a decent compromise. Whether on debates within Britain on membership of the EU, whether in US presidential elections, or whether in discussions in the ‘comments’ section on EJIL: Talk!, political debate is rarely genuine these days.

This is one reason why the story of Robert Brasillach is so interesting, and it is told extremely well in Alice Kaplan’s The Collaborator. Brasillach was a young French novelist, strongly drawn to Nazism before and during World War II, and seriously collaborating with the Nazis – so much so, that he would urge them not to forget to send children to the gas chambers as well. Not surprisingly, after the war he was prosecuted and found guilty of collaboration, and sentenced to death. At this point some people started a campaign to commute the death sentence and, again not surprisingly, many on the political left in post-war French refused to sign up. Read the rest of this entry…

Filed under: Editorials, EJIL

Continent in Crisis

Published on October 7, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).

In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.

Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success? Read the rest of this entry…

Filed under: Editorials, EJIL, European Union

EJIL Editors’ Choice of Books 2015: Jan Klabbers

Published on February 24, 2016        Author: 

Possibly the most disturbing book I have read in a long time is a brief volume written by an Italian political theorist, Roberto Farneti, under the title Mimetic Politics: Dyadic Patterns in Gobal Politics (2015). It is disturbing not for the lack of quality but, rather, for its bleak outlook. Farneti, working in a tradition often traced back to Girard, suggests that global politics is often based on mimesis: states essentially imitate one another until things spiral out of control, at which point a sacrifice is needed in order to restore relatively normal or peaceful relations, and sacrifice typically takes the form of some kind of overt conflict. Perhaps the most well-known illustration is the Cold War madness of mutually assured destruction (although the sacrifice could be averted due to the falling apart of one of the protagonists), but trade wars may also make for ever so many fine examples, never mind the sort of escalation that so often characterizes the Israel–Palestine conflict.

This is disturbing to the international lawyer (this international lawyer, at any rate), in that if Farneti is right it follows that law has little role to play and especially that responsibility and accountability would seem to be based on seriously impractical premises. Disregarding strict liability, most liberal responsibility regimes (and international law is no exception) are premised on actors acting rationally – no matter how perverse their rationalism – and acting on the basis of intentions. Yet Farneti’s argument suggests that the main operative element in state behaviour in neither ratio nor intent but simply imitation. States cannot help but follow each other’s examples, and international relations are thus bound to result in war as the ultimate sacrifice or in litigation as the sublimation of sacrifice. This helps explain the success of the World Trade Organization’s (WTO) dispute settlement body, but it may also help explain why trade wars keep on occurring: the disciplining efforts of the WTO are no match for the mimetic impulse. Read the rest of this entry…

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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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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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Kristina Daugirdas, ‘Reputation and the Responsibility of International Organizations’

Published on March 25, 2015        Author: 

It has long been recognized by international lawyers of a more or less critical bent that one of the ways international law can be considered useful – regardless of the question whose idea of usefulness it serves – is that is provides a vocabulary for discussing things. Rules on use of force and self-defense may not solve conflicts, but provide a language (and often enough the most relevant language) for discussing the use of force. Rules on international trade may not solve trade conflicts, but help provide the relevant actors with a language in which to discuss whether tuna caught by means of driftnet fishing should be banned from markets or not. And even the rules on state succession, limited and few as they are, help facilitate discussions on what to do once a succession of states occurs.

In this light, Kristina Daugirdas’ main argument is hardly surprising. The point that the ILC’s articles on the responsibility of international organizations will play a role in what she refers to as ‘transnational discourse’ is both well-taken and well-crafted. Indeed, the evidence in support of that proposition is perhaps even stronger than she realizes: both before and after their adoption by the ILC, the articles have been referred to by international and domestic courts, including the European Court of Human Rights. That said, it is perhaps also useful to note that the International Court of Justice managed to avoid making any reference to the ILC articles in two recent decisions where a fleeting reference could have been expected: the 2011 judgment between Fyrom and Greece, and the 2012 advisory opinion on the International Fund for Agricultural Development. Still, on the topic at hand, the ILC’s articles are the main authoritative instrument available, so it stands to reason that participants in transnational discourse make reference to it, and look at the articles for inspiration and guidance, regardless of whether the articles are formally binding or can be said to reflect customary international law.

If her general point is not all that surprising, the more interesting part of Daugirdas’ article resides in the combination she makes of two distinct approaches to the study of international organizations. She draws inspiration both from constructivism (highlighting the relevance of norms) and rational choice theory (assuming actors to be inspired by rationalist motives in the pursuit of their self-interest), and does so to good effect. In itself, this combination too is not entirely novel: Ian Hurd and Ian Johnstone have done something similar in recent years (to name just two examples), and one of the Ur-texts of constructivism, Fritz Kratochwil’s Rules, Norms and Decisions (1989) was to a remarkable (and oft-forgotten) degree also inspired by rationalist insights. That said, in his later work Kratochwil seems to have lost some confidence in that kind of reasoning – or maybe he just lost confidence in some of its practitioners. 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…

Filed under: EJIL Book Discussion