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EJIL Editors’ Choice of Books 2015: Jean d’Aspremont

Published on February 24, 2016        Author: 

For all of those scholars cultivating a generalist expertise of a topic, the contents of each year’s readings can vary dramatically. For them, looking back at such readings can prove very illuminating as it can lay bare huge fluctuations in the literary and scholarly sources that serve as inspiration. In contrast to the very doctrinal works I read and reported on last year, my readings of the last 12 months have been primarily devoted to theoretical materials meant to feed into my work on the structure of legal argumentation as well as the professionalization of international law. This may explain why none of the books I list here qualifies as international legal scholarship properly so-called. Yet, in the light of the insights I gained from them, I have come to consider these books as ‘must reads’ for any generalist international lawyer interested in looking beyond the mere mechanical deployment of the formal modes of legal reasoning imposed by the discipline. These also are books that are one click away for international lawyers in wealthy parts of the world as they are published by mainstream publishers and available in most online bookstores.

Before sketching out their content, an observation is warranted on the extent to which not only the selection of our readings but also reading itself is prejudiced by the works and the projects we have in the making. What we make of what we read is very much contingent on what we expect from such materials and even more on what we hope to find therein. In this sense, when we read for scholarly purposes, we turn ourselves into hungry hunters with some pre-reflective preferences or expectations about the type of meat we want to bring home – and, thus, the type of insights we want to present in our own scholarship. The risk is thus that our prey ends up being embellished or corrupted by those pre-reflective preferences or expectations. This is why our reading is, to a large extent, performative as it constitutes the insights we gather from the materials from which we draw inspiration. This very elementary observation explains why, for each of the books mentioned below, I take pains to say a few words about my pre-reflective preferences at the moment of reading – that is, the context in which the reading was done. It may explain why colleagues, in a different context and in relation to different scholarly projects, may have made something radically different of these texts. It should finally be highlighted that my listing of the following books does not entail any value judgment about the intrinsic merit of the theses defended therein, let alone their direct transposability to international legal debates. My choices for this year should more simply be read as refreshing calls to shed some common assumptions found in international legal scholarship. Read the rest of this entry…

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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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EJIL Editors’ Choice of Books 2015: Christian J. Tams

Published on February 23, 2016        Author: 

‘What matters now [in research on international law] is the study of the conditions under which international law is formed and has effects’, Greg Shaffer and Tom Ginsburg noted on the first page of their 2012 article on the ‘empirical turn in legal scholarship’. According to their test, the books I chose could probably be said to ‘matter’, even to ‘matter now’. In Power, Law and the End of Privateering, Jan Lemnitzer offers an exciting account of how a particular aspect of international law was formed, and Yuval Shany (Assessing the Effectiveness of International Courts) provides a framework for studying the effects of international judgments. Their two books are very different, but they both draw on social sciences research methods to elucidate prominent phenomena of international law – a treaty in Lemnitzer’s case, international courts in Shany’s. And they both are – or at least in my case were – eye-openers.

Lemnitzer’s book is that of a historian assessing an international treaty, the 1856 Declaration of Paris Respecting Maritime Law. Largely ignored by today’s mainstream literature, the Declaration marked a milestone in the development of maritime law: it outlawed privateering and, at the same time, strengthened the rights of neutrals, thus ushering in ‘a new era in the history of international maritime law’.  It also marked a milestone in the way international law was made, in that it ‘was the world’s first major example of international “legislation” by means of multilateral treaty’ [Stephen Neff, War and the Law of Nations: A General History (2005), at 188] – a treaty agreed by seven states, which by 1860 had attracted almost 50 ratifications. So perhaps one could say that, in addition to ‘a new era in the history of international maritime law’, the Paris Declaration also ushered in a new era of conscious international law-making through multilateral instruments. Read the rest of this entry…

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EJIL Editors’ Choice of Books 2015: Sarah Nouwen

Published on February 23, 2016        Author: 

Editors Introduction: At the end of 2014, the EJIL Board members were invited to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk! (herehereherehereherehere, and here), were met with great interest and curiosity. As the end of 2015 approached, the EJIL Board members were once again invited to look back on their reading in 2015. In pieces to be published over the next two days, Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books that they read or reread in 2015 and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.

It is actually not that easy to come up with a list of five books that, according to the criteria set by our Book Review Editor, Isabel Feichtner, ‘have had a significant impact on you that year’ or, more precisely, ‘books not necessarily published in 2015 (and not necessarily law books), but read or reread that year, and which you found inspiring, enjoyable or considered “must reads” for your own work or international law scholarship in general’.

As Jean d’Aspremont observed last year, we usually read functionally for our work: a few pages here and there that are relevant to a piece that we happen to be writing. Seldom do we read a book cover to cover (Jan Klabbers providing a praiseworthy exception), and if we do, it is often for a book review (My only book review this year – of David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (2014) – seems disqualified from this list as it has already been published elsewhere). However, even of the few dozens of other books that I did read cover to cover this year, few qualify for this list, if we interpret the criteria to mean that even the books that one finds ‘inspiring’ or ‘enjoyable’ should in some ways relate to one’s work or to international law scholarship in general. While Yotam Ottolenghi’s Plenty More has been studied page by page and proved hugely inspiring in the kitchen, the European Journal of International Law may not be the best forum to explain why. The same goes for the half a dozen books on how to get a baby to sleep through the night – all of which have been tried and tested; none of which I would recommend.

That brings me to a final introductory caveat: it is difficult to select five books that I (re)read this year that I would strongly recommend – that is, that I would suggest to colleagues that they read these five books instead of other books or, indeed, that they spend their Sundays reading these books instead of going for a run, baking an apple pie or attending a political rally. The key problem is that I do not read enough, but the problem is exacerbated by publishers who publish too much. Indeed, it is far easier to come up with a list of recommendations of five books not to read. However, this project does not fit so well with the spirit of the holiday season and, in our profession, might even be a litigation risk (as this journal knows all too well).

Against this backdrop, here are five books that I read, and in one case reread, in 2015 and, in fact, do strongly recommend to my colleagues. Read the rest of this entry…

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Legitimate Targets?: A Reply to Jutta Brunnée and Geoff Corn

Published on September 24, 2015        Author: 

Dill book

I would like to start by thanking Jutta and Geoffrey for their detailed and very thoughtful comments. I am particularly glad that Geoffrey focused on my interpretation of IHL, bringing to bear his military expertise and that Jutta focused on the theoretical part of the book, which is inspired by her own interactional theory of international law (IL), developed with Stephen Toope. As their comments cover different terrains I will begin by addressing three criticisms contained in Geoffrey’s remarks and then separately engage with Jutta’s discussion of the book.

Geoffrey disagrees with my representation of the role and substance of the principle of proportionality. I should clarify that I agree with Geoffrey’s observation that the principle is not necessarily central to many practitioner’s understanding of legitimate targeting. When I emphasize the principle’s importance, I mean its central place in the ‘architecture’ of IHL. It repeats the very purpose of law to somehow accommodate the regularly opposed imperatives of protecting human life and of allowing belligerents to follow military necessity. In theory, how proportionality is interpreted chiefly determines how much civilian protection and belligerents’ freedom of action respectively IHL affords. In practice, it is rarely mentioned without reference to precautions in attack, as Geoffrey points out, and it is often misunderstood.

Geoffrey also questions my representation of the principle’s substance as asking for something akin to a balance between the anticipated military advantage and expected civilian harm. He states that practitioners rather than seeking such a balance ‘understand that where civilian risk cannot be justified by genuine military interests … there is no utility in the use of combat power’. Though very important, I believe this is not a proportionality judgment, but one of necessity. Read the rest of this entry…

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Legitimate Questions about Legitimate Targets

Published on September 23, 2015        Author: 

I appreciate the opportunity to offer my reactions to Janina Dill’s impressive work on lawful targeting, or more precisely the effectiveness of international law in regulating combat operations.

Janina’s book (Legitimate Targets? International Law, Social Construction and US Bombing) is a fascinating analysis of the complex intersection of international relations and international law. Central to her thesis is the dichotomy between what she defines as the “logic of efficiency” and the “logic of sufficiency.” As she explains, each of these concepts reflects some of the underlying objectives of international legal regulation, most notably in relation to armed conflict. The logic of efficiency essentially prioritizes achieving the strategic end-state “efficiently” over protection of the civilian population, essentially trading civilian risk for rapid victory. In contrast, the logic of sufficiency seeks to limit the risks of armed conflict to each party’s military forces in order to enable them to compete in the contest of arms with limited impact on civilians. Janina posits that the targeting regulatory regime established by Additional Protocol I reflects a “sufficiency” foundation, as it sought to limit the use of combat power to only those potential targets that offered a genuine prospect of weakening enemy military capabilities.

International relations theory is well beyond my area of expertise. Nonetheless, what I found most compelling about Janina’s thesis was how she endeavors to translate theory into a more tangible “package” of principles to clarify the relationship between international law and international relations. It is probably unsurprising, however, that I gravitated more towards Janina’s analysis of the impact of international humanitarian law on the planning and execution of combat operations. While I found her dichotomy between “efficiency” and “sufficiency” interesting, I am not persuaded that IHL’s rationale is so neatly segregated. Throughout her book, I found myself wondering why arguments in favor of sufficiency did not also reflect elements of efficiency, and why arguments in favor of efficiency did not also reflect elements of sufficiency. I do, however, think the dichotomy offers a fascinating and novel lens through which to consider the role of IHL, which is, I believe, ultimately what Janina sought to accomplish.

Janina’s explanation of IHL targeting rules was clear and accurate throughout the text. She also provides important insights into how the law, at least in its current state, provides belligerent forces with ample legal “space” for using decisive combat power. While I might disagree with some of her conclusions about actual U.S. compliance with the law during air operations, Read the rest of this entry…

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A Constructivist Theory of International Law?

Published on September 23, 2015        Author: 

Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing (2015) is a rich treatment of challenging terrain. It is difficult to do this excellent book justice by focusing on only some of the many threads that it so skillfully weaves together. Still, I limit my comments to one aspect of the book: the theoretical framework that it develops in the first two chapters.

The book tackles one of the enduring puzzles concerning the operation of international law (IL) in international relations (IR): “How can law make a difference in international relations, where states create legal rules that accord with their interests and normative beliefs, while no central authority enforces those legal rules that do not?” (19)

Janina proposes to solve the puzzle by advancing a theory of IL’s “behavioural relevance” (41), i.e. a theory that explains how IL can make a counterfactual difference by prompting actors to behave differently than they would have done had they simply followed their interests or normative beliefs (349). At different points in the book, Janina stakes out other, even more ambitious, goals. Notably, she asserts that her theory will also show how IL differs from other types of social ordering, thus taking up fellow constructivist Martha Finnemore’s pointed question “Are Legal Norms Distinctive?” (2000). Perhaps most sweepingly, she labels her project a “constructivist theory of international law” (Chapters 1 & 2) and a theory of “what law is” (31, 63). I explore each of these theoretical claims below.

A Theory of IL’s Behavioural Relevance

Janina’s effort to identify IL’s impact must be understood against the backdrop of contemporary IR theory. For Janina, the main strands of IR theory, notwithstanding major differences, share the assumption that states’ motivations for creating and complying with IL are outside of the law (27). What may seem to be inspired by law, is actually driven by prior interests (for realists and rational institutionalists) and/or normative beliefs (for constructivists). For most IR scholars, therefore, law does not provide an independent reason for action – it is “causally dependent” (28).

This relatively dim view of IL is not unique to IR scholarship. Read the rest of this entry…

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Introduction: Legitimate Targets?

Published on September 22, 2015        Author: 

In 2003 during their invasion of Iraq American troops were commended for going to great pains to comply’ with international law and at the same time they were condemned as the ‘most violent and murderous army’ in American history. The question these dichotomous assessments raise is: what can international law (IL) accomplish in war? What does it mean that conduct in war is subjected to regulation by international humanitarian law (IHL), that belligerents wage war legally? My book, Legitimate Targets? International Law, Social Construction and US Bombing, aspires to providing a comprehensive answer to the question in four steps.

The first part identifies mechanisms by which recourse to IL can make a difference for individual and state behaviour. Given the lack of systematic and reliable enforcement of IL, in International Relations scholarship as well as public commentary, this is still often doubted. I argue that IL, when it is recurred to, can mediate between actor’s interests and normative beliefs. What I call the intellectual and the motivational effects of recourse to IL can change how an actor perceives her reasons for action. IL can be behaviourally relevant.

The book then discusses the legal rules defining a legitimate target of attack contained in the First Additional Protocol to the Geneva Conventions and customary law. I address and suggest solutions to a number of subsisting interpretive debates with reference to two alternative logics of how a belligerent can attempt to accommodate the competing demands of humanitarianism and military necessity. What I call the logic of efficiency aims to minimize belligerents’ expenses in time and blood over the achievement of their political goals. The logic of sufficiency aims to contain war to a purely military competition geared towards ‘generic military victory’. The latter is the logic according to which the First Additional Protocol demands that belligerents ‘distribute’ deliberate harm in war. Read the rest of this entry…

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This Week: Discussion of Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing

Published on September 22, 2015        Author: 

Dill bookOver the next few days, we will be hosting a discussion of Janina Dill’s book, Legitimate Targets? International Law, Social Construction and US Bombing. The commentaries on her book will be by Jutta Brunnée (University of Toronto), Geoffrey Corn (South Texas College of Law). We are grateful to all of them for participating in the discussion.

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