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Home Archive for category "Study of International Law" (Page 2)

The Thickening of the International Rule of Law in ‘Turbulent’ Times

Published on March 8, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

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Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

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International Law in “Turbulent Times,” Part II

Published on March 6, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In my previous post, I argued that international law does not foster cooperation at the expense of conflict. It fosters both simultaneously. It helps the participants overcome their differences and achieve a shared agenda, while helping them have and sharpen their disputes. The two kinds of interactions are symbiotic, not antithetical, so the fact that international law cannot stop global actors from inflaming or continuing to have a conflict is not good evidence of its weakness or decline; international law itself enables such interactions. Below, I take my argument a step farther. I claim that the conflicts that are had through international law are not just something to grin and bear; they are often quite productive for the legal project. I then return to the central question that Andreas posed: how might we assess whether international law is in decline?

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International Law in “Turbulent Times,” Part I

Published on March 6, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s interesting post raises foundational questions about international law’s role in the global order. In suggesting that international law is in decline, he assumes a particular vision of what international law does or should do, and thus of how we might evaluate its decay. The vision seems familiar. Many contend that the role of international law is to help global actors curb their disputes and promote their common interests, policies, or values. Of course, these actors will at times disagree. But according to this view, conflicts—normative disputes that manifest in materially relevant ways—are impediments to international law or problems for international law to overcome. They detract from or betray the limits of international law, at least insofar as they persist without final or authoritative resolution.

For example, Andreas suggests that states’ noncompliance with judicial decisions is evidence of international law’s weakness or decline. It shows that international law cannot effectively or legitimately resolve a dispute that is impeding the realization of the prescribed (and presumably shared) agenda. He thus ends his post by arguing that, “in turbulent times,” like the current one, international lawyers and legal scholars ought to insist that the law be applied as it is, and ought not push it in more contentious, value-laden directions that would further destabilize it.

Below and in a follow-up post, I draw on two of my recent articles to explain why that vision for international law is flawed. I then use this analysis to bring into sharper focus one of the principal challenges that international law now confronts.

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Times Are Changing – and What About the International Rule of Law Then?

Published on March 5, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

 

Come gather around people, wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Bob Dylan, The Times They Are Changing, 1964

In 2013, I, as a member of a group of Berlin-Potsdam-based international law scholars, together with colleagues from political science, applied for major funding for what we considered an evolving and growing research question in international law, namely whether the international legal order is facing a significant structural change, which we referred to as a possible ‘Rise or Decline of the International Rule of Law’. What we could not and did not expect (or in order to be cynical: did not hope for) was that major political developments such as, to name but a few, inter alia, the crisis in Ukraine; the election of US President Trump (as to effects on international law thereof see here) and his ensuing political steps such as the termination of US participation in the Paris Agreement to provide but one example; or the growing critique vis-à-vis the International Criminal Court, and other developments we have witnessed in recent years would prove that indeed this is a valid research question to be asked.

What is even more striking is that a significant number of academic events that have recently taken place such as a seminar on ‘International Law in a Dark Time’, a workshop on “International Organizations in Crisis? Rising Authority and Perceptions of Decline”, a conference on a “New International Order in an Isolationist World”, the 2018 ESIL Research Forum on ‘International Law in Times of Disorder and Contestation’ follow a similar, or at last closely related, research agenda. That clearly indicates that the debate as to the rise or decline of the international rule of law is in itself also on the rise, rather than in decline.

It is this setting that provides the background for this EJIL Talk contribution, in which I will set out some of my own ideas underlying this research focus, albeit obviously only with a broad brush, and hence also in a more general fashion, to arouse discussion. Read the rest of this entry…

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Security Council Resolutions as Evidence of Customary International Law

Published on March 1, 2018        Author: 

In 2012 the International Law Commission began to address one of the last major uncodified areas of public international law: how norms of customary law (CIL) are to be identified.  The exercise at the ILC has not been an easy one.  States commenting in 2016 on the Commission’s “draft conclusions” expressed concerns on a variety of issues.  One of the most contentious was the role of international organizations (IOs) in the creation of custom. 

The topic has been the subject of academic conferences at the University of Manchester, the University of Michigan and elsewhere, as well as a growing volume of law review commentary (see here, here, here, here and here).  And in early January, the United States submitted comments on the draft conclusions that were, to put it mildly, opposed to any role for IOs.  Closer to home, Kristen Boon, Isaac Jenkins and I have just published an article on the role of the Security Council in generating evidence of custom related to non-international armed conflicts (NIACs), an area of intense Council involvement. In this post I’ll describe the ILC’s view of IOs, the United States’ response, and then our affirmative arguments specific to the Security Council. Read the rest of this entry…

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Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution

Published on February 28, 2018        Author:  and

While the failure of cyber security negotiations under the auspices of the UN GGE has created a huge void in international regulation, recent cyber-attacks with global reach have shown that action is more urgent than ever. Reflection on standards, good practices and norms should include private sector actors who are often the first victims of cyber-attacks. We consider that the solution to the current vacuum in multilateral cybersecurity negotiations is the creation of a flexible and inclusive body within the OECD that would act as a hub for the various initiatives while promoting close cooperation between States, the private sector and civil society in order to promote standards of responsible conduct in cyberspace.

In recent years, States have tackled the problem of cyber security by multiplying initiatives in various intergovernmental organizations, be they universal organizations (such as the United Nations or the ITU) or regional or restricted organizations such as the European Union (with, for example, the recent cybersecurity package announced by the EU Commission in September), the Council of Europe, the OSCE, the OECD, the African Union, the Shanghai Cooperation Organization, NATO, ASEAN, the G7 or the G20. These initiatives are also developed in ad hoc frameworks specifically dedicated to cyber-security, where an impressive number of conferences are initiated by States, such as the Global Conference on Cyberspace (GCCS) which has launched the Global Forum on Cyber ​​Expertise (GFCE) – and this without counting academic initiatives such as the process that led to the adoption of the Tallinn Manuals 1 and 2 or the creation of Think Tanks like the Global Commission on the Stability of Cyberspace chaired by Marina Kaljurand (formerly Estonian Foreign Minister).

The failure of the UN GGE Read the rest of this entry…

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Is International Law International? Continuing the Conversation

Published on February 9, 2018        Author: 

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks. Read the rest of this entry…

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A Word on the Comparative Approach of International Law and a Proposed Direction for Chinese Textbooks of International Law

Published on February 9, 2018        Author: 

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

Professor Roberts’s thought-provoking book prompts many questions. My preliminary thoughts consist of two strands: one concerning the comparative approach endorsed in the book with regard to identifying similarities and differences in national and regional approaches and seeking to understand why and when these occur (Roberts, p. 33); and the other, concerning Chinese textbooks on the subject of international law. It is presumed that the word “approach” (ibid, p. 36) in this context chiefly refers to that of states, rather than that of academics and textbooks written in those states, unless the approach taken in the latter coincides with that in the former. Such coincidence, it is submitted, requires the adoption by textbook writers of a practice-centred methodology which, however, may not be prevalent at all law schools and at all times. Where the coincidence does not exist, the textbooks could be unhelpful in explaining the reasons underpinning the approach of the country, due to the proverbial gulf between practice and academia that exists in many countries. Such textbooks may never become more than attempts at second guessing of the approach of the country.

The Comparative Approach

The wise call for international lawyers to become “more humble, open and reflexive in their engagement with international law” by adopting the comparative international law approach (ibid., p. 325), is sounded after an in-depth survey of the works of a select group of lawyers, academic or practising, of the five permanent member states of the UNSC (“Big Five countries”), sometimes based on direct contact with some of those lawyers.

I wish to make four general points, with the caveat that, although these points may have been touched upon in the book, further reflection is warranted from the reader’s perspective due to their importance. Read the rest of this entry…

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Can International Law Be More International?

Published on February 8, 2018        Author: 

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

In her monograph Anthea Roberts has drawn a comprehensive portrait of International Law – she has intentionally limited her study to the current, mid 2010s period of time, refraining from diving too deep into history and from speculations on future developments. Now as a real artist the author steps back from its masterpiece and lets the audience draw their own conclusions, check the accuracy of results and data in accordance with their knowledge, and compare a presented image with their own perception of the scene.

In my contribution I try to juxtapose images and impressions collected from a reading of Anthea Roberts’ monograph with my own, and reflect on possible forces which might be able to make International Law ‘more international’.

Visible and invisible curtains and walls

For me the main features of the portrait of contemporary International Law drawn by Anthea Roberts seem to be best defined by notions, such as ‘curtains’ and ‘walls’. ‘Iron curtain’ as an expression is linked to the system of fire protection used in the theatres and later on, thank to Sir Winston Churchill, it became a famous political idiom describing the system of self-isolation used by the USSR to preserve and separate the socialist world from the outside influence. In August 1961 an already existing ‘iron curtain’ between the communist East and capitalist West materialized in the construction of the Berlin Wall. In 1963 when President John Kennedy of the United States visited West Berlin, even the Brandenburg Gate had been draped with a curtain that did not enable inhabitants of East Berlin to see him. Read the rest of this entry…

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