ESIL Newsletter: December 2016
- President’s Message: Do we ask the right questions?
- Guest Editorial: The Life and Death of Treaty Supremacy: A Puzzle (David Sloss, Santa Clara University School of Law)
- ESIL Elections
- 2017 ESIL Membership
- “International Law and…” Select Proceedings of the European Society of International Law
- News from Interest Groups
The 12th ESIL Annual Conference in Riga was, by all accounts, a resounding success. With over 420 participants from 43 countries, the event clearly demonstrated the diversity and vitality of our Society. The event was also successful in terms of substance, with many captivating discussions on the relevance of international law in times of crisis. And, of course, it was a great occasion to meet so many colleagues from all over Europe and beyond.
Yet, after three days at the conference, some important questions remain unanswered. Do we now understand better whether, and how, international law has actually mattered in times of crisis? Has international law been relevant in terms of outcomes, and has it met the objectives for which it was set up? The Riga event displayed an overwhelming interest in doctrinal matters (does the law apply in times of crisis, and what exactly does it have to say?) and in historical, theoretical and conceptual reflections. While all these perspectives are important and were rightly addressed, empirical perspectives were absent.
The Riga conference was not exceptional in this respect. Much of traditional international legal scholarship has focused on formal law and normative prescription and, in the last decade or so, much of modern international legal scholarship, at least in Europe, has moved to explore critical, historical, conceptual, and theoretical angles. Empirical enquiry (either qualitative or quantitative) into what is actually going on is rare.
A seminal overview published a few years ago in the American Journal of International Law showed that AJIL had published very little empirical work. Interestingly, the piece also identified a turn towards empiricism in more recent scholarship. But that turn does not seem to apply to European scholarship. The AJIL piece contains over 200 references to empirical work. Of these, only three were published in the European Journal of International Law and none was taken from a piece published in the proceedings of an ESIL event. Another calculation: looking at the last 100 articles in EJIL, only a very limited number can be qualified as ‘empirical’ in any meaningful sense; those that can mainly focus on the operation and effects of international courts and tribunals. The same picture emerges when consulting the ESIL SSRN series and when sitting in during recent ESIL events.
These patterns leave something to be desired and at the same time present an agenda for the future. Surely it is interesting to reflect on how one can construe that armed groups are or are not bound by international law, what these rules say, and how the way international law addressed armed groups exposes the blind spots of international law? And would it not be at least as relevant to know to what extent armed groups actually follow and apply international law? Similarly, while an historical and theoretical analysis of functionalism has helped us understand the nature of international organisations, should we not also try to enhance our knowledge of whether international organisations matter in terms of achieving the aims and functions for which they were set up? And while much has been said on the aims and ambitions of agreements such as TTIP and CETA, do we know enough of their actual regulatory and economic impact to make meaningful normative assessments – a matter of no small significance in the light of the role of assumptions on this issue in the outcome of the US presidential election?
None of these questions is easily answered, and the methodological challenges are huge. But methodological difficulties hardly justify ducking the questions. If we claim that international law is or can be relevant to, say, climate change, the protection of civilians, and migration, it is incumbent on international legal scholarship to find out how and whether it actually matters. Moreover, such research can rely on tools and methodologies used routinely in political science and economics.
Researching how international law does or does not work in particular contexts is not an alternative to theoretical or normative work, let alone in any way ‘better’. Rather, we can benefit from combining these different streams of scholarship. Much normative work on international law has proceeded on the basis of assumptions concerning international law’s impact and relevance (for instance, in relation to the effects of trade agreements or of international criminal law). The empirical study of law would help to support or rebut such assumptions and thereby influence further normative and theoretical work.
Within our Society, there are ample opportunities for exploring the empirical dimensions of international law. ESIL has recently published several calls for papers for next year’s events. These include ‘Global Public Goods, Global Commons and Fundamental Values’ (the topic of the 2017 Annual Conference in Naples), ‘Post-Conflict Justice in Ukraine’ (the topic of an event being organised by ESIL, the Ukrainian Helsinki Human Rights Union, and the Ukrainian Association of International Law), and ‘Non-UN Sanctions and International Law’ (the topic of the ESIL Prague-Nottingham symposium). Each of these calls presents an excellent opportunity for empirical work. For instance, they allow us to explore whether decades of talk and regulation on conservation of high seas fisheries has made a difference to the actual practice of fishermen. They also allow us to explore whether the international law related to post-conflict justice has been relevant in stabilizing countries that have been in a situation analogous to that of Ukraine. And they allow us to ask the question of how much we know (and can know) about whether sanctions outside the UN have mattered one bit in achieving compliance with international law?
The exploration of such complex questions would benefit much from discussions and collaboration between our members, with their diverse backgrounds and expertise. In addition to the various ESIL events, ESIL Interest Groups lend themselves well for setting up collaborative projects to explore these types of research questions that may benefit our understanding not only of what international law should do or can do, but what it actually does. I welcome any initiatives and suggestions from members who wish to take this forward within our Society.
David Sloss, Santa Clara University School of Law
Many Europeans are troubled by the U.S. Supreme Court decision in Medellín v. Texas. Medellín is puzzling because the Court engaged in treaty interpretation to answer a constitutional question. Now you are probably thinking: “That cannot possibly be right. Why would the Court analyze a treaty to answer a question about U.S. constitutional law?”
The answer relates to a constitutional revolution that occurred in the United States in the 1950s: a revolution described in my new book entitled The Death of Treaty Supremacy: An Invisible Constitutional Change (OUP 2016). Before 1945, U.S. courts applied the treaty supremacy rule without any exception for non-self-executing (NSE) treaties. The rule is codified in Article VI of the Constitution, the Supremacy Clause. The traditional rule consisted of two elements. First, treaties supersede conflicting state laws (i.e., sub-national laws). Second, courts have a constitutional duty to apply treaties, and not state law, if application of state law would be inconsistent with a treaty.
Traditionally, there was no exception for NSE treaties because self-execution doctrine addressed a distinct set of issues—it addressed the division of authority over treaty implementation between Congress and the President. The President could implement self-executing treaties without waiting for legislative authorization. However, congressional legislation was needed to authorize the President to implement NSE treaties. The treaty supremacy rule covered treaties in areas governed by state regulatory authority. Self-execution doctrine covered treaties in areas governed by federal regulatory authority.
Then, after 1945, human rights activists litigated claims that challenged discriminatory state laws by invoking the UN Charter’s human rights provisions together with the treaty supremacy rule. In 1950, a California court applied the Charter’s human rights clauses and the traditional supremacy rule to invalidate a racially discriminatory state law. At that time, racial discrimination was pervasive throughout the United States. Americans simply could not accept that the national government had effectively abrogated Jim Crow laws throughout the South by ratifying the Charter. We needed an escape clause to avoid judicial application of the Charter’s human rights provisions. Consequently, lawyers invented the NSE exception to the treaty supremacy rule.
The doctrine that emerged in the 1950s holds that the treaty supremacy rule applies only to self-executing treaties, not NSE treaties. Hence, when litigants invoke the treaty supremacy rule, courts must first decide whether the treaty is self-executing. Moreover, classification of a treaty as SE or NSE hinges on a treaty interpretation analysis. Therefore, even though the treaty supremacy rule is codified in Article VI of the Constitution, courts are free to ignore the constitutional rule—as the Supreme Court did in Medellín—if they conclude based on treaty interpretation that the treaty at issue is NSE.In practice, classification of a treaty as SE or NSE is almost entirely arbitrary. Courts rationalize their decisions by invoking the “intent of the treaty makers.” In most cases, though, that purported intent is purely fictitious; it is a judicial fabrication. For example, in Medellín, the Supreme Court’s decision was based on a “factual” finding that the President and Senate intended the UN Charter to be non-self-executing when they ratified it in 1945. However, as I have explained in a recent article, there is no evidence whatsoever to support that ostensibly factual conclusion. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2649670.
3. ESIL Elections
Earlier this year, ESIL Board elections were held during the General Assembly at the Riga Annual Conference on 9 September 2016. Seven Board members were elected for a 4-year term: Luis Hinojosa and Anne van Aaken were re-elected, and Veronika Bílková, Pierre d’Argent, Maria Issaeva, Fulvio Palombino and Philippa Webb joined the Board for the first time. Massimo Iovane and Jean d’Aspremont have been co-opted to the Board as local organisers of the Annual Conferences in 2017 (Naples) and 2018 (Manchester). The Society is very grateful to all the new arrivals for their willingness to join the Board and devote their time and energy to the development of the Society.
All ESIL members are invited to contact Board members with proposals for ESIL activities. If you wish to contact the whole Board, please write to email@example.com and your message will be forwarded.
In Riga, the Board said farewell to the following members: Laurence Boisson de Chazournes, Lauri Mälksoo, Geir Ulfstein and Ralph Wilde, as well as to Ineta Ziemele who had been co-opted to the Board as the local organiser of the Riga conference. The Society is very grateful to all of them for their substantial contribution to the Society and we look forward to their continued support.
Membership of the Society is for the calendar year, from January to December. If you are not a 5-year member or a lifetime member, it is now time to pay your fees for next year. You are encouraged to do so before mid-December in order to maintain access to your EJIL online subscription, the EJIL app, and to be listed in the 2017 ESIL Interest Group members lists.
Paying the fee is quick and easy: log into the online membership system, check that your account details are up to date, and then proceed to payment.
New this year:
- From 2017, ESIL Newsletters will be available in either English or French – please indicate your preference in your account.
- There are two new ESIL Interest Groups you may wish to join: the IG on International Health Law and the IG on International Organisations. You can join or leave any group at any time.
Last but not least, if you wish to encourage your colleagues to join the ESIL network, the ‘JOIN’ button is at the top of the website home page.
The select Proceedings of the 10th Anniversary Conference of the European Society of International Law which was held in September 2014 in Vienna “International Law and…” have recently been published. Going beyond the usual related disciplines of political science, international relations, economics and history, the Proceedings collect papers of a Conference which ventured into less well-trodden paths, exploring the links between international law and cinema, philosophy, sports, the arts and other areas of human endeavour. As the Proceedings show, it is clear that international law has long been influenced by other fields of law and other disciplines. They also explore whether the boundaries of international law have been crossed and, if so, in what ways.
For further reference please visit Hart Publishing, http://www.bloomsburyprofessional.com/uk/international-law-and-9781509908134/.
ESIL Interest Groups are a vital part of the Society’s success and activities. New groups have been established in recent months, including IGs on the History of International Law, International Health Law and International Organisations. For more information on our Interest Groups, click here. A list of activities recently held and upcoming events is available in the full text of the Newsletter.
Interest Group on International Economic Law
Workshop of the ESIL Interest Group on International Economic Law, Wednesday, September 7 2016 – ESIL Conference in Riga (Latvia)
The ESIL IG on IEL held a very successful one-day workshop in Riga on 7 September 2016, devoted to ” The New Frontiers of International Economic Law”. The ESIL IEL IG Workshop was divided in three sessions, concerning the new mega-regional trade and investment agreements and the proposed international investment court, IEL and sustainable development and climate change, international economic law and economic sanctions. The papers selected for the Riga Workshop will be published in an ad hoc ESIL SSRN Conference Paper Series for the ESIL IEL IG.
International Conference “UNESCO World Heritage Between Education and Economy – A Legal Analysis”, Ravenna, 27-28 October 2016
The ESIL IEL IG is pleased to invite you to the International Conference on the topic “UNESCO World Heritage Between Education and Economy – A Legal Analysis”, which will be held in Ravenna on 27 and 28 October 2016. The programme is available here and the registration form is available here.
The UNESCO Ravenna Conference aims to generate much heat in discussion and debate on the interaction between UNESCO World Heritage and education, and UNESCO World Heritage, economics and International Economic Law. It has been developed through an International Call for Papers, which attracted the attention of many important scholars from all over the world.
Call for Papers – International Conference “The Role of the European Parliament in the Conclusion and Implementation of Agreements on International Economic Law Issues”
On 9 December 2016, the Interest Group on International Economic Law of the European Society of International Law in cooperation with the European Parliament will organize an International Conference on “The Role of the European Parliament in the Conclusion and Implementation of Agreements on International Economic Law issues “. The Conference will be held at the premises of the European Parliament in Brussels. The Scientific Committee has launched an international call for papers. Abstracts must not exceed 800 words, and have to be submitted by 7 November 2016 to the following email addresses: firstname.lastname@example.org ; email@example.com ; firstname.lastname@example.org.
In addition to the abstract, each submission should contain a separate file with information on: • The section of the call for papers for which the abstract is submitted • The author’s name and affiliation • A short (one page) author’s CV, including a list of relevant publications • The author’s contact details, including email address and phone number. Further information on the call for papers may be found here http://www.esil-sedi.eu/node/1464.
Interest Group on Feminism and International Law
On Friday 9th September, the Feminism and International Law Interest Group of the European Society of International Law (ESIL) held an agora at the annual conference entitled ‘The Gendered Imaginaries of Crisis in International Law.’ The agora session was initially inspired by Hilary Charlesworth’s provocative statement that ‘international lawyers revel in a good crisis. A crisis provides a focus for the development of the discipline and it also allows international lawyers the sense that their work is of immediate, intense relevance.’ In this vein, the agora aimed to disrupt mainstream interpretations and perspectives on crisis as well as remind attendees of the various ways in which gender is implicated in the narratives of crisis. The agora was bilingual (in both French and English). This bilingualism not only helped to disrupt the increasing dominance of the English language at ESIL but also allowed for a wider array of feminist perspectives to be considered.
Interest Group on International Business and Human Rights
This year’s topic of our ESIL Workshop in Riga was “Non-State Actors, Human Rights and Sustainable Development Goals (SDGs): An Opportunity for International Law in Times of Crisis?”. Presentations on the right to water in the SDGs, grievance mechanisms and the role of Multilateral Development Banks (MDBs) in promoting human rights standards among business actors were followed by intense discussions with our participants and commentators. Previously this year, our Coordinating Committee contributed to a Roundtable organized by the ASIL’s IG on “Human Rights” with a presentation on “Extraterritorial obligations and water rights: greater protection under UNGPs?”. Our members are encouraged to participate in the UN Forum on Business and Human Rights which will be held in Geneva between the 14th-16th November 2016. In 2017, we will organise a call for papers and an event at the ESIL Annual Conference in Naples. The current Coordinating Committee assumed office in January 2016 and is committed to intensify its engagement with our 268 members. For more information, please download our annual report and visit our blog. We welcome your contributions. You can contact us through email by sending a message to: email@example.com.
Interest Group on International Health Law
The Interest Group on International Health Law was set up in June 2016 to provide all interested ESIL members with a forum of discussion, inter-disciplinary and cross-sectoral research and sharing of experiences in the field of human health protection in international and European law. Its convenors are Gian Luca Burci (Graduate Institute of International and Development Studies of Geneva), Stefania Negri (University of Salerno) and Andraz Zidar (University of Bologna). Membership of the IG is fast and steadily increasing and the kick-off meeting of the Group will take place on 12-13 December 2016 at the University of Salerno, on the occasion of the celebration of the International Conference on “Public Health and International Law: Challenges and Priorities in Health Security, Environmental and Food Safety”. This conference is the first event sponsored by the IG, in cooperation with the European Association of Health Law and the IG on International and European Health Law of the Italian Society of International Law (SIDI-ISIL). The programme of the conference will be shortly announced to all ESIL members and published on the IG website www.inthealthlaw.com (currently under construction).
Interest Group on Migration and Refugee Law
The Interest Group organized a business meeting during the ESIL 12th Annual Conference in Riga (7-9 September 2016), which took place on 8 September 2016. The meeting has provided a good opportunity to liaise with members and to discuss future plans and ideas. Furthermore, ESIL, its Interest Group on Migration & Refugee Law, and the African Association of International Law (AAIL) have jointly organized a conference, funded by the Dutch Ministry of Security and Justice, on the “International Legal Aspects of Migration – African and European Perspectives”, which was held on 14 October 2016 in The Hague. This event has brought together African and European scholars working on international and regional issues of migration and refugee law of particular interest to both constituencies. As per the future activities, given that international migration and refugee law and practice are undergoing change rapidly, not least in Europe and at its borders, the Interest Group plans to organize a conference entitled “The Future of International and European Migration Law” in the second half of 2017.
 G Shaffer and T Ginsburg, ‘The Empirical Turn in International Legal Scholarship’. 106 AJIL 1.