Readings 2016: On the Fringes of International Law

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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 André Nollkaempe’s selection.

The five titles on my 2016 list of books relate to international law in very different ways. What they have in common is that they are not so much concerned with the substance of international law, but rather with questions relating to its emergence and the practical implications of international law. Sometimes books that hardly use the language of international law can be most illuminating for international lawyers.

Peter Wadhams, A Farewell to Ice. A Report from the Arctic (Allen Lane, 2016)

Peter Wadhams’ A Farewell to Ice masterfully shows how the liberties of international law impact on climate change and result in a thinning and retreating of polar ice with scary speed and consequences. Wadhams, a polar researcher in Cambridge, notes that ‘we have created an ocean where there was once an ice sheet’ and that this is ‘[m]an’s first major achievement in reshaping the face of his planet’. Wadhams pictures a particularly glooming scenario for 2035, when the Arctic seabeds – permafrost from the last ice age – will melt and release massive methane plumes that are over 20 times more effective in raising global temperature than all the CO2 we have focused on. The book sketches powerful images of floods, fires, droughts, storms, and inundation of low-lying areas –with dramatic consequences for human habitation and lives. While international law has facilitated and legitimized the policies leading to these consequences, Wadhams vests some hope in international law; he sees the Paris Agreement as a sign of common will to act. Yet, much more is needed to avert the gloomy consequences of climate change – mainly research and investment in new technologies (wind, wave, solar, tidal and nuclear energy) need to be incentivized. Post-US elections this is not a happy reading, but one that is needed to compel us to action.

Christina Lamb, Farewell Kabul: From Afghanistan to a More Dangerous World (Harper Collins, 2015)

A quite different, yet equally sombre assessment of the result of international policies is Christina Lamb’s Farewell Kabul: From Afghanistan to a More Dangerous World. This is a war journal in the best sense of the term, reflecting more than 25 years of reporting experience in the region. The book provides a very sobering account of the post-9/11 military adventures of the United States and its allies. Much has been written on why and how international law should be construed so as to allow for these attacks on ‘non-state actors’. This book displays the total mismatch between the policy ambitions underlying this liberal reading of international law and the actual results. The initial aim of the attacks (rooting out terrorism) was never accomplished. Multiple new aims were formulated, with ever less clear legal bases and with equally little success. The book provides a compelling case-study of ill-conceived attempts to build democracy and the rule of law and to strengthen women’s rights; objectives that moreover failed to connect to the interests of the local population – who above all hoped for security and food. Lamb connects the larger implications. Afghanistan led to Iraq, Iraq led to ISIS, and all the previous failures led to inaction in Syria. It is a must read for those international lawyers who plead, with noble intentions, for a liberal construction of international law so as to allow for foreign interventions.

Rossana Deplano, The Strategic Use of International Law by the United Nations Security Council – An Empirical Study (Springer, 2015)

Much closer to international law is Rossana Deplano’s The Strategic Use of International Law by the United Nations Security Council – An Empirical Study . This book is not without shortcomings, but deserves a place on this list as it is an all too rare attempt to bring empirical legal studies to international law. In 2016 the dominant features of international law are still doctrinal, normative, critical, historical, and theoretical. Empirical enquiries into what international law accomplishes in practice remain rare. Deplano supplements the many doctrinal studies on the Security Council with an empirical study that seeks to establish the extent to which, if any, international law is able to limit the discretionary powers of the SC, and how the practices of the Council contribute to the development of international law. The study demonstrates the bias of the SC towards international terrorism and protection of women, children and civilians, and its ignorance of other issues. The book also shows the benefit of combining empirical with normative work on international law, as it uses the data to propose a new theory of self-imposed duties in a few areas, which ‘may redefine the very idea of international peace and security’. Parts of the study remain somewhat flat, but overall the book definitively sets out a path worth following.

David Sloss, The Death of Treaty Supremacy. An Invisible Constitutional Change (Oxford University Press, 2016)

A more traditional volume is David Sloss’ The Death of Treaty Supremacy. An Invisible Constitutional Change. The book tells a powerful story of constitutional law changes through practice, and of how written constitutional law can mislead ignorant observers. Every student who tries to understand the complex relations between international law and domestic law in the US will start with art. VI of the US Constitution, proclaiming that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’ While there was a time when this provision actually governed and explained practice, few provisions could leave one more ill-prepared for an understanding of the role of treaties in the US legal system. The book details how without formal amendment, in practice major limits were imposed on the actual effect of treaties, most of all in the form of the non-self-executing treaties doctrine. This constitutional change reflected a political struggle, triggered by a 1950 decision of a California court to use the human rights provisions of the UN Charter to invalidate a state law that discriminated against Japanese nationals. While amendments that sought to prevent such rulings were proposed but never passed, the supporters of change achieved their goals through de facto constitutional change, with the result that state governments are allowed to violate treaty obligations including international human rights obligations. The larger message is that to understand how international law does or does not constrain national policy requires much more than a cursory look at formal provision, and that one needs to understand the domestic politics that inform the actual application of such rules.

Philippe Sands, East West Street. On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016)

Finally, there is Philippe Sands’ masterful East West Street. I will not be the only one to include the book in the list of favorites, but the book deserves multiple praise. The power of the book is above all its evocation of the personal stories that propel international law. The concepts of ‘crimes against humanity’ and ‘genocide’ are not concepts that are ‘out there’, waiting to be applied, but were conceived, developed and applied by individuals with a personal stake and with personal ambitions. Placed in the city of Lviv, Sands reconstructs the stories of Lemkin and Lauterpacht, who lived and studied in this city with its history of extermination of Jews. Along separate paths, they contributed to the development of the concepts of genocide and crimes against humanity, to connect again in the Nurnberg trials. What makes the book particularly enthralling is that it links the personal stories of Lauterpacht and Lemkin with that of Sands’ grandparents. East West Street drives home how personal histories matter in the development of the law – and how they can result in exceptional scholarship.

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