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

‘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.

In his work, Lemnitzer traces the diplomatic history of the Declaration and uses it to illustrate the potential impact of international law on international relations. On the latter, broader, issue, he probably tries to do too much. Drawing on his analysis of one document, albeit an historically important one, he advances general claims about the nature of international law (‘house rules of the international community’) and its capacity to restrain power (international law is ‘real, but [it is] what states make of it’). His repeated statements that the Paris Declaration was at the ‘origin’ of international law is, to put it mildly, surprising, and his perspective of ‘law versus power’ at times schematic. However, these shortcomings, I felt, were more than made up for by Lemnitzer’s treatment of the Declaration and its context. Drawing on extensive archival research, his account of the public and secret diplomacy has just so much to offer – not only for naval inclined readers but also for those interested in the interplay of power politics, commercial (merchant) interests and public opinion. For instance, why did Britain, after the Crimean War, suddenly reverse its long-held view and accept limits on the right to seize neutral ships and goods and did it stumble into this change of policy? By what means did the USA, threatened by the emerging consensus against privateering, seek to water down the Declaration’s prohibition? Why were two disparate issues – privateering here, rights of neutrals there – combined into a package deal? And how come the Senate of Bremen, of all players, came to lead an (almost successful) international campaign for the protection of private property at sea that might have undermined the 1856 Declaration? Lemnitzer answers all of these questions and many more. He has an eye for instructive illustrations and anecdotes (and weaves them in cleverly), but he never loses sight of broader developments. And he writes well and, at under 200 pages, almost economically. The result is an accessible account of 19th-century maritime legal history that can be read during a weekend (perhaps in a seaside hotel, while looking out on the sea) – an illustration of how much international lawyers can learn from serious historical research on legal issues.

My second pick is quite different. It is not necessarily a weekend read, and its focus is much broader. In it, Yuval Shany, one of international law’s leading voices on international courts and tribunals, assesses their effectiveness in an analysis heavily drawing on social science research into international institutions. His book is presented as a contribution to empirical legal scholarship, but it is a particular contribution that puts forward a ‘conceptual framework to analyze questions about … effectiveness’. Such a framework is necessary because, as Shany notes, effectiveness is a highly complex category. In essence, he argues that international courts are set up to perform very different functions (from dispute settlement, to law-making, to institutional governance), and it is against these different expectations that their effectiveness needs to be judged. This makes for a slightly bloodless starting point – a court is effective if it ‘attain[s] … the mandate providers’ goals’ – but it holds the key to a differentiated analysis of courts and tribunals that challenges conventional legal approaches. Shany makes the point expressly:

‘[T]he traditional proxies for judicial effectiveness that a good part of the international law literature relies upon – caseloads, judgment-compliance records, acceptance of jurisdiction and so on – actually tell us little about goal-attainment’.

Instead, effectiveness needs to be judged against a broader set of goals, and in an ‘institution-specific’ manner. In simpler terms and by way of three illustrations: some courts are weak dispute settlers but successful law-makers; others mainly act as a supervisory organ for domestic courts (and through them), and still others were set up to legitimize the exercise of public authority. All of these courts can be effective or ineffective, but, clearly, their effectiveness needs to be measured against different yardsticks. To identify these standards becomes a real challenge, but Shany introduces useful categories (ultimate goals, intermediate goals and goal ambiguity) that can guide the analysis.

In emphasizing the need for a differentiated analysis that takes account of the diverse functions of international courts, Shany is part of a relevant strand of new research on international courts, now largely consolidated in the wonderful Oxford Handbook on International Adjudication (C. P. R. Romano, K. J. Alter and Y. Shany (eds), 2014). My general feeling is that this new strand of research has significantly enhanced our understanding of international courts and their role in international relations – perhaps precisely because it draws so much on insights from social science research (perish the thought!). The question is how much of this will trickle down into the mainstream legal literature. Can future international law textbooks still afford to treat courts within the chapter on dispute settlement (thus ignoring their many other functions)? And do we really need to rehearse old debates about international adjudication’s ineffectiveness whenever a court judgment is ignored? Shany’s book, and the research strand of which it forms a part, suggests that many mainstream accounts of courts and tribunals need more than a little updating.