CALL FOR PAPERS: ESIL IG History of International Law Research Forum Workshop 'Regulating Global Security: History of an Illusion'

 

ESIL IG History of International Law Research Forum Workshop

Regulating Global Security: History of an Illusion

Throughout history, with words and with deeds, international lawyers and activists have striven to eliminate war and conflict. Yet international law, the institutions it has built, and even the normative considerations it has engendered, have failed to guarantee global security and prevent interstate conflicts. Why has this happened? Why have so many past attempts to achieve a right and just world order failed? 

We invite the submission of papers on aspects of the history of international law and global security, including proposals on the following indicative themes:

- The role and relevance of international law in global security discourse;

- The concept of security in international law from a historical perspective;

- The role of states and non-state actors in shaping the regulation of global security;

- The impact of territorial and resource disputes on global security;

- Law-making in the history of global security;

- Development of environmental security in international law;

- Development of economic and financial security in international law;

- The role of international (judicial) institutions as guardians of global security;

- Development of hybrid means of warfare and their regulation;

- (Mis)understanding the power of regulation in the history of global security.

The workshop is expected to take place in advance of the ESIL Research Forum in Glasgow, 31 March – 1 April 2022, in a hybrid format, and we invite submissions for both physical and distant participation.

Please submit your abstract of no more than 500 words together with a short CV by 

31 January 2022 to markus.beham@uni-passau.de.

The Interest Group is unable to provide funding for travel and accommodation. Selected speakers will be expected to bear the costs of their own travel and accommodation. Some ESIL travel grants and ESIL carers grants will be available to offer partial financial support to speakers who have exhausted other potential sources of funding.

Please see the ESIL website for all relevant information about the Research Forum. The Interest Group workshop is open to ESIL members and all participants are required to register for the Research Forum.

Steering Committee Members

Markus Beham – Jaanika Erne – John Morss – Florenz Volkaert

ELECTIONS: Candidacies expected by 22 OCT

The current Steering Committee of the Interest Group History of International Law needs to be renewed. ESIL Members with an interest in history are invited to submit their candidacies by the end of the current week with the ESIL Secretariat (ESIL.Secretariat at eui dot eu). The ESIL membership will subsequently elect a new Steering Committee.

Since its inception in September 2014 , the ESIL IGHIL has organised multiple Interest Group Events at the ESIL Research Fora and Conferences. The blog posts news and publications on a nearly daily basis. This unique channel of communication reaches hundreds of ESIL members, and probably has not yet reached its full potential. Service on the IGHIL’s Steering Committee is a unique opportunity in the career of early career researchers as well as established academics.

JOURNAL: European Journal of International Law XXX (2019), No. 3

(image source: blogger)

• Editorial
  • On My Way In – I: Impressions of a New Editor-in-Chief’s First Months in the EJIL Engine Room; On My Way Out – Advice to Young Scholars VI: WeakPoint, On the Uses and Abuses of PowerPoint; In This Issue
• Articles
• Paz Andrés Sáenz de Santa María, The European Union and the Law of Treaties: A Fruitful Relationship
• Vera Shikhelman, Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee
• Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction
• Symposium: International Commissions of Inquiry
• Michael A. Becker & Sarah M.H. Nouwen, International Commissions of Inquiry: What Difference Do They Make? Taking an Empirical Approach
• Eliav Lieblich, At Least Something: The UN Special Committee on the Problem of Hungary, 1957–1958
• Hala Khoury-Bisharat, The Unintended Consequences of the Goldstone Commission of Inquiry on Human Rights Organizations in Israel
• Mohamed S. Helal, Two Seas Apart: An Account of the Establishment, Operation and Impact of the Bahrain Independent Commission of Inquiry (BICI)
• Roaming Charges: Moments of Dignity: Mekong River
• EJIL: Debate!
• Jeffrey Kahn, The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St. Petersburg
• A. Blankenagel, The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: A Reply to Jeffrey Kahn
• EJIL: Debate!
• Heike Krieger, Populist Governments and International Law
• Marcela Prieto Rudolphy, Populist Governments and International Law: A Reply to Heike Krieger
• Paul Blokker, Populist Governments and International Law: A Reply to Heike Krieger
• A Fresh Look at an Old Case
• Amedeo Arena, From an Unpaid Electricity Bill to the Primacy of EU Law: Gian Galeazzo Stendardi and the Making of Costa v ENEL
• Review Essay
• JHHW, FIFA – The Beautiful Game – The Ugly Organization
• Sahiba Gill, Edouard Adelus and Francisco de Abreu Duarte, Whose Game? FIFA, Corruption, and the Challenge of Global Governance. Review of J. Sugden and A. Tomlinson. Football, Corruption and Lies: Revisiting ‘Badfellas’, the Book FIFA Tried to Ban; D. Conn. The Fall of the House of FIFA: The Multimillion-Dollar Corruption at the Heart of Global Soccer; H. Blake and J. Calvert. The Ugly Game: The Corruption of FIFA and the Qatari Plot to Buy the World Cup; B. Mersiades. Whatever It Takes: The Inside Story of the FIFA Way; J. Chade. Política, Propina e Futebol: Como o Padrão FIFA Ameaça o Esporte Mais Popular do Planeta
• Book Reviews
• Roger O’Keefe, reviewing William A. Schabas, The Trial of the Kaiser
• Anna Chadwick, reviewing Honor Brabazon (ed.). Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project
• Richard Gardiner, reviewing Joseph Klingler, Yuri Parkhomenko, Constantinos Salonidis (eds). Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law
• The Last Page
• Antjie Krog, Litany

Read the issue on the OUP website.

(source: IL Reporter)

ESIL IGHIL: Steering Committee Composition after Athens Conference

The membership of the ESIL Interest Group History of International Law had the occasion to renew the composition of its Steering Committee.

We thank Martin Clark (LSE), Hossein Piran (Iran/US Claims Tribunal) for their appreciated and valuable contribution in the past period.

Jaanika Erne (Tartu) and John Morss (Deakin) joined the board.

The current composition of the Steering Committee is as follows:

Markus Beham

Following a successful first term with the Coordination Committee, I would hope to continue the direction in which we have steered the IG these last two years together with my fellow colleagues. What I feel strongly for and would like to carry forward into the next term is our emphasis on the use of original archival material, out-of-the-box creativity in both topics and research questions, and further encouragement of diversity in all respects within our panels. Part of my personal agenda is promoting the exchange among historians, legal historians, and international lawyers working on legal history through mutually inclusive common events. I am currently an Assistant Professor at the Chair for Constitutional and Administrative Law, Public International Law, European and International Economic Law at the University of Passau, Germany and am an adjunct at the Section for International Law and International Relations of the University of Vienna, Austria. Having also studied history with a focus on Eastern European history, where my research interests were the ‘long 19th century’ with the demise of the Ottoman Empire and the history of population exchanges and deportations throughout the 20th century, I have been exploring selected aspects of these topics in our calls for papers.

Frederik Dhondt

I am grateful for the ESIL IGHIL's memberships trust to continue running the ESIL IGHIL Blog, which attracts between 3500 and 4000 pageviews a month. This blog was created after the ESIL Conference in Vienna in 2014. I studied law (Ghent, 2007), history (Ghent/Paris-Sorbonne, 2008) and International Relations (Sciences Po Paris, 2009), and obtained the degree of doctor of law in 2013 (Ghent). I currently am an Assistant Professor at the Faculty of Law and Criminology of the Vrije Universiteit Brussel (since 2015) and a Visiting Lecturer at the Law Faculty of the University of Antwerp since 2016. I teach international legal history, comparative constitutional history and political history. My research interests concern legal argumentation and diplomacy in the 18th and 19th centuries, and the interaction between constitutional and international law. I published on Franco-British diplomacy after the Peace of Utrecht (Balance of Power and Norm Hierarchy. Franco-British Diplomacy after the Peace of Utrecht, Brill, 2015) and on Belgian permanent neutrality between 1830 and 1914 (e.g. my chapter in International Law in the Long Nineteenth Century, eds. Inge Van Hulle and Randall Lesaffer, Brill, 2019). At the Vrije Universiteit Brussel, I am the director of the Research Group Contextual Research in Law (www.vub.be/CORE). More detail can be found on my personal website.  

Jaanika Erne

Prior to having B.A. and M.A. in law from the University of Tartu, LL.M. in public international law from the University of Helsinki, and M.A. in EU law from King’s College London, I was a student of theology at the Institute of Theology of the Estonian Evangelical Lutheran Church from 1987 to 1999 and at the Faculty of Theology of the University of Tartu from 1996 to 1997. I am writing up my Ph.D. dissertation at the University of Tartu, where I am aiming at understanding a legal-political concept - conferral of state powers, in its evolution in national and transnational contexts. From 1997 until 1999 I was a Fellow, and from 1999 until 2000 a Master Student at EuroFaculty section at the University of Tartu. In 2000, I began my studies as an Erasmus exchange student at the University of Helsinki, where I graduated from the LL.M. Programme in 2003. Thereafter I worked at the Eurodocumentation Centre at the Library of the University of Tartu from where I left for the traineeship programme of the European Commission in the fall of 2003. From 2004 to 2012 I was teaching public international law, EU law, and law concepts at Estonian and Finnish universities. In 2002 I was a successful examinee at the University of Thessaloniki Institute of Public International Law and International Relations’ 30th session ’International Challenges to Peace and Security in the New Millennium’. After that I have attended several international workshops and seminars in public international law and EU law, and some of my research articles and book reviews have been published in Juridica International, Acta Martensis Societatis, Trames, Nordic Journal of International Law, Baltic Journal of International Law, Thesaurus Acroasium, Ius Antiquum, Finnish Yearbook of International Law, etc. More details at the Estonian Research Portal. I believe in common intellectual and research space and think that comparative historical analysis could assist in building a bridge for understanding and explaining the opposites individual/state, science/politics, ideas/ideologies, but also systems and autonomies. jaanika.erne@ut.ee

Jan Lemnitzer

I am Assistant Professor at the Center for War Studies, University of Southern Denmark and was formerly Director of Studies at Oxford’s Changing Character of War programme. I have published on the history of international law in Diplomacy & Statecraft, the International History Review and the European Journal of International Law. My LSE PhD thesis on the 1856 Declaration of Paris has been published with Palgrave Macmillan under the title Power, Law and the End of Privateering. The books argues that the 1856 Declaration marks the beginning of the codification of international law, and my current work explores the 19th century expansion of international law more generally, and in particular what it can teach us about norm creation in novel and highly globalized areas such as cyberspace. In addition, I continue to work on the origins of the norm of civilian immunity and the history of international criminal law. I have served as the chairman of the Interest Group for the last two years.

John Morss

I grew up in London UK and first studied psychology (BSc Sheffield, PhD Edinburgh), taking a lecturing post at the Ulster Polytechnic (subsequently the University of Ulster), which is located in the northern zone of Ireland. Having migrated to Aotearoa/New Zealand in the mid 1980s to teach in an education department, my psychology scholarship turned increasingly from empirical to historical and theoretical issues around development, evolution, progress and similar tropes (The Biologising of Childhood: Developmental Psychology and the Darwinian Myth, 1990). Around the turn of the millennium I retrained in law at the University of Otago, and relocated to Melbourne Australia, gaining a post at Deakin University where my scholarship has been a mix of legal philosophy and international jurisprudence eg International Law as the Law of Collectives, 2013, and a paper on the status of the Vatican/Holy See in the European Journal of International Law, 2015, both of which include a smattering of amateur historiography.

ESIL ELECTIONS: New Steering Committee ESIL IGHIL

(image source: ESIL2018conference)

The ESIL Secretariat sent out the following message on 29 Oct 2019:

Following the call for candidates, we are pleased to inform you that the five following members will form the new CC of the Interest Group on the History of International Law.

• Markus P. Beham: 4 years
• Frederik Dhondt: 2 years
• Jaanika Erne: 2 years
• Jan Lemnitzer: 2 years
• John R Morss: 4 years

The new team will be announced on this blog soon.

ESIL IGHIL Pre-Conference Workshop: The Rule of Law in Historical Perspective, ESIL Research Forum Göttingen, 3 APR 2019

(image source: Georg August Universität Göttingen)

Denise Wohlwend (University of Firbourg (CH)), The Rule of Law in the Debates of the Sixth Committee of the United Nations General Assembly – Reflections on the Evolution and Universality of the Concept
Abstract:

The rule of law provides that people should be ruled by the law. Despite its prominence in today’s legal and political discourse on a global scale, the exact content of the rule of law remains contested. Legal scholars commonly distinguish between formal and substantive conceptions of the rule of law, which are often associated with positivistic and naturalistic accounts of law, respectively. Within the United Nations (UN), an “autonomous notion” of the rule of law has been emerging since the 2000s. Importantly, in 2005 the UN member states recognized the rule of law as one of the organization’s “core values and principles”, as well as “the need for universal adherence to and implementation of the rule of law at both the national and international levels”. In 2006, the UN General Assembly decided by resolution A/RES/61/39 to include in the provisional agenda of its sixty-second session the item “The rule of law at the national and international levels”. Since then, it has debated the topic, selecting different subtopics, through its Sixth Committee. This has resulted in the adoption of annual resolutions reaffirming the UN member states’ commitment to the rule of law at the national and international levels. Despite multiple references to the rule of law contained in UN documents, it is not entirely clear what the rule of law at both the national and international levels amounts to within the UN. The UN member states disagree about its exact content. True, frequent reference has been made to the definition of the rule of law put forward by the UN Secretary-General in his 2004 Report “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”. Moreover, it has been held that over the years, the member states of the UN have settled on this conception of the rule of law. However, so far, a comprehensive analysis of the debates about the rule of law at the national and international levels within the Sixth Committee is missing. In this paper, I aim to fill this gap. I intend to analyze the discussions about the rule of law at the national and international levels conducted by the representatives of UN member states within the Sixth Committee, from 2006 until today. I examine (1) whether the expressed views reflect the conventional distinction between formal and substantive conceptions of the rule of law, and (2) whether a single or common conception of the rule of law may be deemed to have emerged. I shall then use the findings of the analysis as a starting point for a more general reflection on the issue of the universality of the concept of the rule of law. In short, the rule of law can be deemed universal as long as there are common elements that make it the same concept, in spite of differences in its parochial interpretation. Conversely, if there are no such elements, the universal character of the rule of law may be questioned. Of course, a consideration of the universality of the rule of law concept requires a clarification of the (possible) meaning(s) of universality. Moreover, in the paper, I shall also deal with the question of whether, and if so how, the issue of the universality of the concept of the rule of law is connected to positivistic and naturalistic approaches to the concept of law.

Premislaw Tacik (Jagellionian University, Krakow),
The Evolution of the Rule of Law in the Framework of the European Convention on Human Rights
Abstract:

The presentation aims to reconstruct the outline of history of how the concept of the rule of law was understood and applied in the regime of the European Convention on Human Rights, particularly in regard to ECtHR’s and EComHR’s jurisprudence. Even though the maintenance of the rule of law is one of the goals of the Council of Europe and part of the ECHR’s preamble, historically it was not understood as a source of directly enforceable rights. As stated by the ECtHR in an early judgement in Golder v. the UK, it was, however, a point of reference in interpretation of particular rights and freedoms enshrined in the Convention, particularly when their limitations were at stake. Through this linkage, the ECtHR made some cautious steps to make the rule of law a living and effective concept. It influenced the establishment of standards concerning the quality of laws limiting rights and freedoms (as in Tourancheau et July v. France case) and shaped the understanding of the position of the judiciary under the ECHR. In the latter regard, the ECtHR for a long time displayed a restrained approach and gave a significant leeway to the states in regulating the status and nomination of judges. Nonetheless, in the recent years a different trend might be observed. It seems that the ECtHR developed the standards of the rule of law in the response to the illiberal backlash. The Baka v. Hungary case might be interpreted as a milestone in this regard: the ECtHR declared the violation of Art. 6 § 1 ECHR consisting in terminating the status of a judge via targeted legislation, by which Hungarian authorities wanted to prevent the president of the Hungarian Supreme Court to continue his term. In this ruling, the concept of the rule of law links the standards of the independence of the judiciary – now influenced by soft law of the CoE – with requirements of proper legislation. Moreover, by breathing a new life into Article 18 in the Merabishvili v. Georgia case the ECtHR seems to notice that the rule of law must be defended by preventing the states from executing their illegitimate goals in restricting rights and freedoms. All in all, it might be argued that the approach to the rule of law under the ECHR is in dynamic transformation: the Court seems to pass from restrained interpretation to active support of the rule of law in confrontation with the rise of illiberalism.

Alan Nissel, Capitalism and the Evolution of State Responsibility: How US Law became Binding upon New States and, Ultimately, Everyone Else
Abstract:

Since the late nineteenth century, Anglo-American lawyers have employed domestic standards of property protection to hold Latin American governments responsibility for injuries suffered by Western aliens. Barely hidden behind this rule of law mask was a capitalist structure of economic expectations that favored Western over local individuals. The doctrine of state responsibility emerged, historians explain, as a mechanism for fostering the peaceful resolution of international claims. The idea was that arguing over legal norms – by professional lawyers in third party courts and tribunals – was certainly preferable to diplomatic and military alternatives. There is data to point to that indicates a happy correlation: the establishment of state responsibility has coincided with the rise of international arbitration and the demise of force interventions. This result has convinced many that international law, despite its lack of any police force, can finally be described as positive law. Because there are legal consequences for international breaches, international law must be binding. Today, state responsibility is the sacred cow of international lawyers, assuring us of the reality of their cause. However, the doctrine of state responsibility is not just a legal norm of peaceful dispute resolution; neither is it is simply a neutral procedure of international arbitration. It is a framework of capitalist values that was imposed by Anglo-American diplomats to provide better than local protection to their nationals residing in Latin America. The evolution of state responsibility is a story of Anglo-American triumph in the international debates over the international minimum standard of care and about the normative basis for recognizing States, of admitting nations to international organizations and of identifying them as international personalities. The historic success of State responsibility is, thus, not just a rule of law narrative; it is continued evidence of how Western imperial values underpins the primary enforcement regime of international law: State responsibility.

Ryan Mitchell (Chinese University of Hong Kong), International Rule of Law and the Problem of Legal Sanction: War and the Zwangsordnung
Abstract:

The project of using international law to prohibit wars of aggression grew steadily in importance from the Hague Conference era through World War One, culminating with the Kellogg-Briand Pact of 1928. While there has been much recent discussion of the Pact, and debates about its role in originating the crime of aggression (most recently consolidated via the Kampala Amendments to the Rome Statute), there has been less detailed examination of the specific contemporary debates as to the legal validity of the Pact's norm seeking to prohibit aggression. The views of prominent legal scholars of the time can be distinguished into three main contending positions, each of which then had significant influences upon the subsequent theory and practice of public international law. These three perspectives can be summarized as positing either that 1) the Pact independently abolished the validity of all wars per the principle pacta sunt servanda or as an element of customary international law (the view of Quincy Wright, Hersch Lauterpacht, and others); 2) the Pact had no meaningful legal effect due to its broad exceptions and reservations, as well as the fundamental impossibility of restricting states’ traditional rights to wage war (Carl Schmitt's view); or 3) the existing jus ad bellum could not in fact be revised by the Pact per se, but only by an international organization exercising an effective monopoly on the legitimate use of force (Kelsen's view). This paper explains the evidence, methodology, and theoretical implications of each of these perspectives, including the context of the scholars and states who were their respective advocates. It concludes by endorsing the third view, exemplified by Hans Kelsen in his critical analysis of legal prohibitions of war, arguing that the mere disavowal by states of their rights to wage war (as reflected in the Pact) does not equate to a legal prohibition of war under international law unless there is a centralized sanctioning authority enforcing that prohibition, as was introduced under the UN Charter in 1945. This view, while conservative in some ways, also provides the foundation for Kelsen's related claim that international law as a "Zwangsordnung," or sanction-based order, is potentially as robust and enforceable a system of legal norms as is any domestic legal system.

Andre Nunes Chaib (MPI Luxemburg), The Various Sides of a Coin: Ideas of Rule of Law in the Ideology of International Adjudication
Abstract:

International courts have been both the object of praise and criticism throughout their existence. It is also well-known that their creation, as well as the use of international arbitration, was also always replenished with controversies. Nevertheless, despite controversies, international courts and international arbitration made their way into the life of states and individuals during the last century and had come to be accepted as important institutions in international life. Much of the backlash and the critique on international adjudication nowadays come from a tension existing between the various ideologies pervading the imaginary that informs the work of international courts. This tension finds its origin in the historical debates at the turn of the 19th to the 20th century involving international lawyers and diplomats, mainly from Europe and the United States about the concept of the rule of law at the international law and what role should arbitration or permanent international courts should have in enforcing it. In light of these debates, this paper will look into the ideologies that informed these debates and how this tension – resulting in utopic positions but also in stark criticisms – created the legal and political imaginary for international adjudication until today. Much has been written and said about the role of US international lawyers, such as Elihu Root, in pushing forward the movement towards the creation of permanent international adjudicatory mechanisms and the resistance some of them faced by European international lawyers, fearful of what courts at the international level might do to their then still strong empires’ sovereignty. Although these two sides are revealing of a particular ideal of the international rule of law, it does not tell the whole story. Therefore, this paper hopes to shed light to other ideas coming from other parts of the world, which particularly during the Second Hague Conference in 1907, influenced and impacted the ideology of international adjudication and the ideal of international rule of law that was formed at that time and that remains pervasive to these days. Individuals, such as the Brazilian Ruy Barbosa, were known to have been staunch defenders of sovereign equality and offered specific ideas about the nature and function of a potential international court. This paper hopes to clarify these different positions that were put forward at that time by not only US or European lawyers, but also by individuals of the Global South. In doing so, it hopes to show how specific ideas regarding the international, advanced by cosmopolitan thinkers such as Jeremy Bentham and Immanuel Kant, but also lawyers such as Andres Bello and Carlos Calvo were decisive in the formation of the ideology of modern international adjudication. Such an inquiry should also reveal the origins of the tensions existing nowadays regarding international adjudication and aid in the understanding of its criticism.

The conveners of the Steering Committee for the ESIL Interest Group History of International Law:
Jan Lemnitzer (Southern Denmark)
Markus Beham (Passau)
Martin Clark (LSE)
Frederik Dhondt (Brussels/Antwerp)
Hossein Piran (US/Iran Claims Tribunal)