Zarbiyev: Of Theory and Reality, and Airplanes and Helicopters

Fuad Zarbiyev (Geneva Graduate Institute) has posted Of Theory and Reality, and Airplanes and Helicopters (European Journal of International Law, forthcoming). Here's the abstract:

The general course on public international law delivered by Professor Alain Pellet at The Hague Academy of International Law deviates from the recent tendency indulged in by many general courses to approach the discipline from the angle of a particular theme. His is a course taking the phrase ‘general course on public international law’ quite literally. Despite the generalist outlook of the course, however, there is a guiding thread animating it – namely, Pellet’s vision of how the reality of international law should be approached by international lawyers – in particular, by international law academics. After a brief general presentation of the course, this review essay focuses on Pellet’s theory of the theory and reality of international law and attempts to offer some general observations about what such a theory means against the backdrop of the current state of the discipline.

Hakimi: Exorcising Hobbes's Ghost: A Future for Constitutional and International Law

Monica Hakimi (Columbia Univ. - Law) has posted Exorcising Hobbes's Ghost: A Future for Constitutional and International Law (Michigan Law Review, forthcoming). Here's the abstract:

Daryl Levinson seeks to exorcise Thomas Hobbes's ghost from U.S. constitutional law. Over three centuries ago, Hobbes defined law as the command of the sovereign, thus denying that law could ever be directed at the sovereign. Levinson argues that the development of international and constitutional law since then proves that Hobbes's conception of law is erroneous. And yet, Levinson says, this conception continues to infect how many analysts approach the craft. His self-described project in Law for Leviathan: Constitutional Law, International Law, and the State is "to bring together international and constitutional law to develop a unified theory of law for states" that is free from Hobbes's errors.

I am fully on board with Levinson's project. I argue in this Essay, however, that Levinson does not cut deeply enough. He himself employs a conception of law that is fundamentally Hobbesian in nature--and marred by many of the same errors. I then offer a conceptual corrective to break completely from Hobbes with three clarifying effects. First, my corrective illuminates how law works unlike Hobbes imagined. Second, it presents a metric for identifying when law is working well or poorly (and for whom). Third, it brings into sharper focus the urgency of finally exorcising Hobbes's ghost. U.S. constitutional and international law are both now being radically transformed, creating a once-in-a generation opportunity to reconstitute their basic foundations. As long as Hobbes's ghost retains its stranglehold on our collective legal and political imagination, we risk not only squandering the opportunity to improve our lot but also stumbling confusedly into a world that is considerably more oppressive than the one that we are leaving behind.

Borlini: On Financial Nationalism and International Law: Sovereignty, Cooperation and Hard/Soft Governance in International Finance

Leonardo Borlini (Univ. Bocconi - Law) has posted On Financial Nationalism and International Law: Sovereignty, Cooperation and Hard/Soft Governance in International Finance (European Journal of International Law, forthcoming). Here's the abstract:

The prevailing view among legal scholars over the last decade is that international financial collaboration is a resolutely cooperative venture that cannot be reduced to the interests or relative power of individual states. Moving along this line, the book under review shows that the protection of financial nationalism contributes to the creation of global systemic risks. In this review essay, I discuss the three overarching themes addressed in the book – namely, the logic of financial nationalism, the role of soft and hard law in the international governance of finance and the related problem of compliance. International financial law is still emerging as a discipline and the issues under discussion are at the heart of the ongoing debate about how to devise adequate international structures and international norms to govern markets and control systemic risks in finance. Proceeding from a critical approach to the international law of finance, I analyse the book’s focus on financial nationalism and the limits of its juxtaposition with the economic logic of externalities; the case for strengthened formalization; and, finally, the extent to which the theoretical framework proposed in the book is relevant for rethinking the logic and prospect of compliance in international finance.

Labuda: The International Criminal Tribunal for Rwanda and Post-Genocide Justice 25 Years on (Review Essay)

Patryk I. Labuda (Univ. of Amsterdam) has posted The International Criminal Tribunal for Rwanda and Post-Genocide Justice 25 Years on (Review Essay) (European Journal of International Law, forthcoming). Here's the abstract:

2019 marked the 25th anniversary of the Rwandan genocide and of the establishment of the International Criminal Tribunal for Rwanda (ICTR). After prosecuting 73 people, including high-ranking politicians and military leaders, the Rwanda Tribunal closed its doors in 2015. Together with its sister tribunal, the International Criminal Tribunal for the former Yugoslavia, the ICTR is considered one of the first-generation ad hoc tribunals mandated to bring justice to countries emerging from conflict. This review essay examines four books to take stock of the scholarly debate on the ICTR’s performance. After analysing the Tribunal’s achievements and shortcomings, it explains that scholarly assessments of the ICTR rely on two different analytical lenses – a national and/or international perspective – to make claims about the roles of international criminal tribunals. The essay then discusses the ICTR’s interactions with other post-genocide justice mechanisms in Rwanda and the compatibility of concurrent judicial responses to mass violence. In conclusion, it suggests that evolving interpretations of the ICTR’s performance reflect prevailing ideas about the goals and limitations of international criminal tribunals.

Chesterman: Can International Law Survive a Rising China?

Simon Chesterman (National Univ. of Singapore - Law) has posted Can International Law Survive a Rising China? (European Journal of International Law, forthcoming). Here's the abstract:

The founding myth of international law is the sovereign equality of its member states. How, then, can and should it accommodate the rise of one potential hegemon and the decline of another? This review essay discusses an important new book by Cai Congyan, of Xiamen University, that tries to reconcile an international rule of law with rising powers in general and the rise of China in particular. The larger theoretical project is less successful than a more immediate one, which is describing and explaining China’s instrumentalist approach to the rule of law at the domestic and international levels. Though the tone of the book is assured and reassuring, Cai’s diplomacy at times leaves some interesting questions unanswered — and a few crucial ones unasked. It is, nonetheless, essential reading for anyone seeking to understand how China sees and uses international norms and institutions.

Hakimi: Why Should We Care About International Law?

Monica Hakimi (Univ. of Michigan - Law) has posted Why Should We Care About International Law? (Michigan Law Review, forthcoming). Here's the abstract:

In "The Trump Administration and International Law," Harold Hongju Koh advances two descriptive claims about the efficacy of international law in the age of President Trump. First, international law has been effective in curtailing U.S. disobedience, despite Trump's antics. Second, it could also empower President Trump; the president would be more effective at achieving concrete policy goals if instead of dismissing international law, he harnessed it to get things done. The book's upshot is that international law can have real operational value, including, perhaps especially, for the United States.

Yet Koh did not write the book just to reiterate that point. He clearly is worried that Trump is doing damage both to the enterprise of international law and to the U.S. relationship with it. Thus, he intends for the book to be a "call to action," imploring people to uphold international law and contest the Trump administration's antagonistic policies. This is where the book falls short. It does not give readers compelling reasons to fight not just against the Trump administration but for international law. What about international law is both worthwhile and at serious risk under President Trump?

I argue in this Review Essay that, because the book focuses so intently on the material outcomes that international law might produce, it misses what's uniquely at stake in the current moment. A lot of law's value, both domestically and at the international level, lies in fostering a particular kind of argumentative practice. International law's argumentative practice is not, as some suggest, just cheap talk, a means for achieving concrete ends, or a smokescreen for reinforcing positions of dominance. It is worthwhile for reasons that are independent of its material outcomes. And it is deteriorating under President Trump.

Heffes: Some Reflections on the Theory of Sources of International Law: Reexamining Customary International Law

Ezequiel Heffes has posted Some Reflections on the Theory of Sources of International Law: Reexamining Customary International Law (Israel Law Review, forthcoming). Here's the abstract:

This review explores certain challenges related to the notion of customary international law. It seems that it was a long time ago when international law academics and practitioners ever thought that the nature of this source was a well-settled topic. Nowadays international lawmaking processes involve an extraordinary number of interactions, taking place both formally and informally. Such complex features are reflected by an exponential increase in the scholarly study of international legal sources. The legal nature, its applicability and principles regulating customary international law are addressed in the book under review (Brian D Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2017)) through several topical essays. The chapters offer a comprehensive analysis of these lawmaking processes and the challenges they portray from various perspectives and in various fields, such as: What is customary international law and why is it law? Is it law because it reflects a ‘global legislative’ model? What is the current value of the persistent objector theory? Is the two-element definition of customary international law still applicable? By meticulously addressing these and other inquiries, the book presents novel arguments and represents a stimulating addition to the literature on sources of international law.

Alter: The Empire of International Law?

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Empire of International Law? (American Journal of International Law, forthcoming). Here's the abstract:

This review essay examines three intellectual histories focused on fundamental transformations of international law in the early twentieth century. The transformations reflect power shifts in the international system, and the change from a colonial to a multilateral international legal order. I use the histories (authored by Juan Pablo Scarf, Arnulf Becker Lorca, and Oona Hathaway/Scott Shapiro) to investigate four fundamental issues of both historical and contemporary relevance.

1) How does one construct a global history of international law, and in particular how do intellectual histories help us understand international legal transformations?

2) How do legal scholars and communities of practice contribute to international legal change?

3) How is power encoded into international law?

4) Can great powers escape imperial dominance, or the charge that their actions and their invocations of international law are imperial?

In addition to critically engaging the three books, the essay also examines how contestation over international law by powerful and weaker actors is often overlooked, yet this contestation shapes international law’s trajectory.

Roele: Policing Critique

Isobel Roele (Queen Mary Univ. of London - Law) has posted Policing Critique (Modern Law Review, Vol. 81, no. 4, pp. 701-721, July 2018). Here's the abstract:

Can fiction fan the spark of hope in Martti Koskenniemi’s critical international law writings? In the course of a critical reading of Wouter Werner, Marieke de Hoon, & Alexis Galán, The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge University Press, 2017), this review article argues against the hermeneutics of suspicion and for a more reparative approach to doing international law critically. Drawing on work in Literary Studies, it identifies the limiting effects suspicion can have on critique and suggests that fiction offers a way of grounding abstract concepts and thinking about their complications and implications. It illustrates this technique by reading one of Koskenniemi’s theoretical protagonists, dubbed the “critical professional” by Sahib Singh, alongside the trope of the maverick cop in TV police procedurals, with special reference to The Wire.

Nouwen: The Story of His Life: Philippe Sands' 'East West Street'

Sarah Nouwen (Univ. of Cambridge - Law) has posted The Story of His Life: Philippe Sands' 'East West Street' (British Yearbook of International Law, forthcoming). Here's the abstract:

This essay reviews Philippe Sands’ book ‘East West Street’, and the documentary and theatre performance that preceded the book’s release. These works tell unforgettable stories of Lviv and Nuremberg, of Hersch Lauterpacht, Rafael Lemkin and Hans Frank, of genocide and crimes against humanity.

The book straddles several genres: according to its cover it is ‘part historical detective story, part family history, part legal thriller’. But it is more than that: it is also part psychological drama, part ‘third-generation Holocaust representation’, part Yizkor. This essay argues that it is best read as a life story - the story of Sands’s life. It is ‘the story of his *life*’ in that Sands has again, and better than ever, popularised international law. But it is also ‘the story of *his* life’: Sands himself is the character who binds the stories together. Read as a life story, the book stands out as a unique, unputdownable and unpindownable personal exploration of family silences and histories, that cannot be generalised.

Collins: The Slipperiness of 'Global Law'

Richard Collins (Univ. College Dublin - Law) has published The Slipperiness of 'Global Law' (Oxford Journal of Legal Studies, Vol. 37, no. 3, pp. 714–739, Autumn 2017). Here's the abstract:

What is ‘global law’? What is specifically global and specifically legal about global law? Is it even coherent to define law by reference to its ‘globality’? These are just some of the questions taken up by Neil Walker in his new book, Intimations of Global Law. In this review essay, I engage critically with Walker’s response to these and other questions. Whilst I believe that Walker’s mapping of different ‘species’ of global law is useful and informative in revealing a ‘state of the art’ of globalising legal trends, his effort to draw these various and not necessarily commensurate species together into a coherent meta-theorisation of global law is, I believe, far less convincing. Walker’s conceptualisation of global law is self-defined by reference to its openness, its intimated quality and its ‘adjectival’ categorisation—characteristics that leave the concept of global law somewhat ‘slippery’ and malleable to the point of its non-utility in actually helping to guide law’s direction, resolve normative disputes or remedy apparent accountability deficits and injustices at the global level.

Galbraith: Cooperative and Uncooperative Foreign Affairs Federalism

Jean Galbraith (Univ. of Pennsylvania - Law) has published Cooperative and Uncooperative Foreign Affairs Federalism (Harvard Law Review, Vol. 130, no. 8, p. 2131, June 2017). Here's the introduction (footnotes omitted):

Foreign affairs are a matter for our national government. On this there was agreement from the beginning, with even the Jeffersonians accepting that the nation should be “one as to all foreign concerns,” albeit “several as to all merely domestic.” The text of the Constitution bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states. The received wisdom was that, as Alexis de Tocqueville wrote, “[n]ations in relation to each other are but single units” and “[a] nation needs a single government above all to give it the advantage when dealing with foreigners.”

But are foreign affairs exclusively a matter for our national government? And if not, then what can states and local governments do with regard to foreign affairs? Like other separation of powers issues, these questions have been with us throughout our constitutional history, sometimes salient and sometimes muted, expressed through the continued practice of various layers of government and the sporadic interventions of courts. From early on, states have engaged with issues involving both local and transnational dimensions, including immigration, the treatment of foreign nationals, and the use of foreign law.

Today the shared space between what is local and what is transnational is far greater. Just as issues once viewed as local matters increasingly came to be seen as national, so now they are increasingly taken to have transnational significance. Globalization presses on practically every front: trade, environment, security, health, human rights, investment, migration, and more. One prominent effect of this shift has been the rise of transnational regulation through treaties and other forms of international cooperation. The counterpart is the growing extent to which state and local governments act in this shared space. This is the focus of Professors Michael Glennon and Robert Sloane’s thoughtful recent book, Foreign Affairs Federalism: The Myth of National Exclusivity.

Glennon and Sloane frame their project as an attempt to debunk “three pervasive myths about foreign affairs federalism” (p. xv). One of these myths is conceptual, another constitutional, and the third political. The conceptual myth is that there is a “neat distinction” between domestic and foreign affairs (p. xvii). The constitutional myth is “that foreign policy is or should be, with a few minor and inconsequential exceptions, exclusively federal” (p. xviii). The political myth is “that state control equates with conservative — and federal [control] with liberal — political causes” (p. xvi). When put in their strongest form, the three read more like straw men than myths, but Glennon and Sloane use them effectively as foils for their own nuanced claims. Broadly speaking, Glennon and Sloane argue that states and cities constantly engage in activities with transnational implications and that constitutional law should be capacious in permitting these activities.

Central to Glennon and Sloane’s account is a description of the kinds of transnational work that states and cities are doing in practice (pp. 55–76). For the most part, the authors see states and cities as seeking to fill voids left by federal inaction in the transnational space (pp. 45–55). Their account should cheer liberal hearts. States and cities are not just trying to look after their citizens abroad, ensure security at home, and bring in more foreign investment. They are also working to slow climate change, promote human rights, and push back against oppressive foreign regimes. Of course, this is only some states and cities. Others are pursuing policies at the other end of the spectrum, such as laws seeking to crack down on undocumented immigrants. Nonetheless, Glennon and Sloane’s celebration of states, and especially cities, as potential guardians of liberal values feels eerily prescient in the wake of the 2016 election.

Glennon and Sloane draw a contrast between the dynamic state and local practice that they document and the contours of current Supreme Court doctrine. For Glennon and Sloane, the Court gets most issues of federalism and foreign affairs at least a bit wrong, and some quite wrong. They explore numerous aspects of the doctrine — dormant preemption, statutory preemption, the relationship between state law and federal common law, the treaty power, and the ability of states to enter into agreements with foreign governments. It is only in the last of these areas that they are unqualifiedly approving of the current law, and this is because the Supreme Court has not developed doctrine but has instead left untouched an increasingly permissive practice (p. 277). In the other areas, Glennon and Sloane offer careful analysis and thoughtful critiques of existing doctrine. One need not agree with each of their characterizations and preferred solutions to find their book to be an informative and valuable contribution to the literature on federalism and foreign affairs.

Yet Glennon and Sloane’s doctrinal focus does not adequately excavate the ways in which states and local governments engage in foreign affairs and how these ways relate to federal law and practice. It brings to mind a scene in Huckleberry Finn, in which Tom Sawyer insists that he and Huck must dig a tunnel with case-knives rather than pickaxes because he has “read all the books that gives any information about these things [and t]hey always dig out with a case-knife.” After hours of fruitless labor, Tom then sets down his case-knife and says, “Gimme a case-knife.”

Glennon and Sloane’s focus on the constitutional aspects of foreign affairs federalism as determined by the Supreme Court has some kinship with a case-knife. It works very well for some things, but not so well for understanding how various branches and levels of government are empowered or constrained with respect to foreign affairs. One reason for this, which Glennon and Sloane acknowledge, is simply that Supreme Court doctrine is not always a reliable guide to practice in foreign relations law, because the Court’s interventions are sporadic, discrete, and heavily limited by justiciability doctrines. More fundamentally, Glennon and Sloane pay relatively little heed to how actions by the federal political branches may affect the behavior of state and local governments. Instead, they largely assume that state and local governments are engaging against a backdrop of federal inaction. This leads them to pay particular attention to the doctrine of dormant foreign affairs preemption and to emphasize the virtues of states and cities as laboratories of democracy. Where they do consider how action by the federal political branches might affect state and local engagement in foreign affairs, they look almost exclusively at issues of preemption.

But the increasingly transnational nature of our society has done much more than raise the likelihood of state and local involvement in transnational issues. It has also made it much more likely that the federal political branches and state or local governments will find themselves interacting with respect to these issues. Such interactions have long been a mainstay of domestic federalism. The phrase “cooperative federalism” speaks to how the federal political branches can encourage state and local governments to pursue federal policies, including through the use of federal funding. More recently, Professors Jessica Bulman-Pozen and Heather Gerken have used the phrase “uncooperative federalism” to describe the ways in which state and local governments can in turn shape or resist these federal policies. Much of foreign affairs federalism — indeed, I suspect most of foreign affairs federalism — is now cooperative or uncooperative.

Climate policy provides a good example. Glennon and Sloane portray progressive state and local governments as having stepped up to act on climate change mitigation, including by embracing international standards, “despite the federal government’s failure to ratify the Kyoto Protocol” (p. 62). They identify efforts undertaken by California as a leading example (pp. 62–63). Reading their description, one might think that state and local governments are standing alone against climate change and that their legal ability to do so turns on their power to regulate against a backdrop of federal silence. In practice, however, the most important developments with respect to climate regulation have involved interactions between the federal and state political branches. During the George W. Bush Administration, the biggest impact that liberal states had with respect to climate change was likely their distinctly uncooperative decision to sue the Environmental Protection Agency for failing to regulate greenhouse gases under the Clean Air Act. Their victory in that case in turn provided California and other states with some authority to regulate greenhouse gas emissions under the cooperative federalism scheme set forth in the Clean Air Act. At least since that time, debate in the courts around the legality of California’s actions has centered on the scope of the Clean Air Act and administrative law principles, not on dormant foreign affairs preemption.

The interactive nature of foreign affairs federalism means that different tools — pickaxes, perhaps — are needed to understand and evaluate it. As to doctrine, while preemption remains an important issue, cooperative and uncooperative foreign affairs federalism implicates other strands of law as well. Among these are constitutional doctrines that relate to justiciability, like standing, and substantive ones aimed at commandeering and coercive conditions, which manage the extent to which the federal government can encourage or effectively force state and local governments to take certain actions. Looking outside of constitutional law, how state and local governments interact with the federal government in the foreign affairs space is further affected by international law, administrative law, particular statutory schemes, and sometimes even state law. As to practice, the fact that so much of foreign affairs federalism is cooperative or uncooperative has implications for the federal distribution of powers. Congress and the President can each try to enlist state and local governments in ways that enhance their own power at the expense of the other branch.

In what follows, I argue for reorienting the focus of foreign affairs federalism toward its cooperative and uncooperative aspects. In Part I, I situate Glennon and Sloane’s contribution within the broader literature on foreign affairs federalism and describe some of their contributions. In Part II, I briefly examine four of the examples of foreign affairs federalism given by Glennon and Sloane: the sister-cities program, trade sanctions and related measures, the regulation of undocumented immigrants, and climate change mitigation actions. I argue that both the political choices made by state and local governments and the legal consequences of these choices interact closely with a backdrop of federal statutes and executive branch action, while background constitutional principles about state power in the face of federal silence play a distinctly smaller role. In Part III, I draw on scholarly work engaging with cooperative and uncooperative federalism and consider what implications it offers for the foreign affairs context. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to the foreign affairs context. But because of the added complexity of the foreign affairs context — including its ties to international law and its increased reliance on strong executive power — the specifics cannot simply be imported wholesale. I therefore close by suggesting three sets of ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.

McCrudden: Is the Principal Function of International Human Rights Law to Address the Pathologies of International Law?

Christopher McCrudden (Queen's Univ. Belfast - Law) has posted Is the Principal Function of International Human Rights Law to Address the Pathologies of International Law? A Comment on Patrick Macklem's The Sovereignty of Human Rights (University of Toronto Law Journal, forthcoming). Here's the abstract:

I aim to provide a critique of Patrick Macklem’s thesis in The Sovereignty of Human Rights that the function of human rights in international law should be seen ‘in terms of their capacity to monitor the structure and operation of the international legal order . . . requir[ing] the international legal order to attend to pathologies of its own making.’ I suggest an alternative account, that seems to me to be more consistent with much of the practice that he describes but rearranges it to provide a more convincing narrative. The function of human rights in international law does have the function that Macklem attributes to it, among others, but to claim that this is the function of international human rights law is to underestimate the complexity of human rights as well as their true significance (at least in my view). An analysis of international human rights law must take this complexity into account if a coherent and convincing explanation of the normativity of international human rights law is to stand any chance of being identified.

Blog Symposium on Steven Ratner's The Thin Justice of International Law

On his blog, James G. Stewart has been hosting a symposium on Steven R. Ratner's The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford Univ. Press 2015). The symposium contains an introduction by James G. Stewart, contributions by Karen J. Alter, David Luban, Colleen Murphy, and James G. Stewart, and a response by Steven Ratner. EJIL Talk! and the Ethics & International Affairs Blog also ran a symposium on the book, as noted here.

Pedersen on Vitalis's World Order, Black Power Politics

Susan Pedersen (Columbia Univ. - History) has published Destined to Disappear (London Review of Books, Vol. 38, no. 20, October 20, 2016, pp. 23-24), reviewing Robert Vitalis, White World Order, Black Power Politics: The Birth of American International Relations (Cornell Univ. Press 2015). Here's an excerpt:

White World Order, Black Power Politics does two things. First, it provides a critical history of the institutional development of the field of international relations in the United States, from its founding at the turn of the century through to the Cold War. This history is radically unfamiliar: the ‘origin story’ taught on undergraduate courses, which traces the field’s core concepts (realism, liberal internationalism) back to Thucydides or Machiavelli or Wilson is, Vitalis insists, a post-1945 invention. Instead, at the moment of its American birth, ‘international relations meant race relations.’ Races, not states or nations, were considered humanity’s foundational political units; ‘race war’ – not class conflict or interstate conflict – was the spectre preying on scholars’ minds. The field of international relations was born to avert that disaster. A blunter way to put this, and Vitalis is blunter, is that international relations was supposed to figure out how to preserve white supremacy in a multiracial and increasingly interdependent world. . . .

[A] small, hard-pressed group of black scholars . . . insisted that the problem was not racial conflict, or even racial difference, but simply racism: the systematic and worldwide denial of equal rights to citizenship and self-determination on grounds of race alone. Vitalis calls this group the ‘Howard School’: the term captures both Howard University’s pre-eminence as a centre of African-American learning at a time when white universities would train but not hire black academics, and the distinctive contribution of its faculty to scholarship more broadly. At a time when international relations was the study not of the anarchical relations between the world’s states but of ‘the dynamics of domination and dependency among the world’s superior and inferior races’, these ‘first black scholars (and only them) in a deeply segregated academy challenged the fundamental premise of international/interracial hierarchy, that different norms applied to different classes of people’. Recovering their indefatigable work is this book’s second major contribution.

Macklem: Thick Law, Thin Justice

Patrick Macklem (Univ. of Toronto - Law) has posted Thick Law, Thin Justice (Michigan Law Review, forthcoming). Here's the abstract:

Steven Ratner’s The Thin Justice of International Law offers a timely, comprehensive and theoretically rich interdisciplinary theory of international law’s relationship with global justice. Ratner argues that the justice of legal norms that constitute our international legal order should be determined according to two criteria: the degree to which they causally bring about international and intrastate peace; and the degree to which they causally bring about a state of affairs in which basic human rights are respected.

This Essay explores three features of The Thin Justice of International Law: its commitment to rule consequentialism; its treatment of the state system as a fixed attribute of our international legal order; and its embrace of a political conception of human rights. Its commitment to rule consequentialism leads to the possibility that its two pillars of global justice might give way to more fundamental moral concerns relating to the attainment of human welfare and human flourishing, in which case another pillar — one directly that tests the justice of legal norms in terms of their proximity to human welfare — comprises another dimension to international law’s relationship to global justice. Its commitment to state system as a fixed attribute of our international legal order results in a thick conception of a just international legal system. Questions relating to international law’s distribution of sovereignty — its origins, the episodic recalibrations to which it is subject, especially during and after times of war, and its distributional consequences remain outside the normative sphere of global justice. One such question concerns the relationship between a system of sovereign states and global economic inequality. Its endorsement of a political conception of human rights does not protect interests from the adverse consequences of the distribution of sovereignty performed by international law in its aspiration to organize global politics into an international legal order. Human rights that speak to mitigate some of these consequences — the right to development in particular — seek to protect interests associated with human welfare and human flourishing in the face of both the distribution and exercise of sovereign power, and thus merit recognition on the list of human rights that a theory should seek to instantiate as a matter of global justice.

Venzke: Cracking the Frame? On the Prospects of Change in a World of Struggle

Ingo Venzke (Univ. of Amsterdam - Law) has posted Cracking the Frame? On the Prospects of Change in a World of Struggle (European Journal of International Law, forthcoming). Here's the abstract:

Critical scholarship classically lays bare the assumptions and choices that people make when they argue. By displaying the consequences of those assumptions and choices, it seeks to instil a sense of responsibility for them. Drawing them out into the open, critical scholarship presents them for contestation, unsettles them, and opens them up for change. In his latest book, A World of Struggle, David Kennedy directs our attention to the background work of expertise – how it rules through arguments, how it shapes the global political economy and how it sustains unjust distributions of gains. Kennedy offers a warm invitation to join the struggle to imagine and remake the world differently. In the present review, I discuss this invitation’s specific appeal. More generally, I ask about the prospects of change in international law as well as the activities that might support such change. I argue, first, that carving out background assumptions and choices is not enough. What is needed is an account of transitions – something that Kennedy acknowledges but does not provide. Second, I approach the vexed question of who could effectively crack existing frames – a question that Kennedy ducks. And, third, I discuss the role of violence, rhetoric and reason in the argumentative practice of expert work – distinctions that Kennedy refutes. I am ultimately happy to accept Kennedy’s invitation. It surely comes with immense acuity, subtle side blows and not so subtle punches – always in his signature style. I conclude that, with the aim of inducing change, a core activity of scholars should be to trace changes in concrete contexts and to thereby regain a sense for the possibilities of the past.

Moyn: Knowledge and Politics in International Law

Samuel Moyn (Harvard Univ. - Law and History) has published Knowledge and Politics in International Law (Harvard Law Review, Vol. 129, no. 8, pp. 2164-2189, June 2016). Here's an excerpt:

In his new book on how the world is ruled today through expert knowledge, [A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy,] Professor David Kennedy enters this continuing discussion [of knowledge and politics] in brilliant, pathbreaking, and trademark fashion. Slyly presenting himself as a disinterested observer of global governance, Kennedy eclectically draws on twentieth-century perspectives about knowledge, achieving a synthesis all his own. Presented without theoretical encumbrance or jargon, A World of Struggle is a straightforward but sophisticated account that capitalizes on prior insight to achieve a unique and powerful vantage point. The superlative book wins its distinction not only because it constructs a novel theory but also because it applies that theory to how the globe as a whole is ruled — something no one in the canon of social theory has really done.

According to Kennedy, accounts of global governance are themselves typically products of an expertise that does much of the work of immunizing a contestable world from serious critique or change. “Terribly unjust, subject to crisis, environmentally unwise, everywhere politically and economically captured by the few, and yet somehow impossible for anyone to alter or escape” is Kennedy’s description of the contemporary situation. His “hypothesis” in response is that “this stability arises from the relative invisibility and imperviousness of the world of technical management to contestation.” To understand expertise is to grasp how the terms of debate and decision about solutions end up reinstating problems.

Much in the book is vintage Kennedy. There is a sinuous prose cast with enviable lucidity in spite of its high level of complexity. There is, as I will examine later, the structuralist vocation that, from Kennedy’s beginnings, has delighted in providing inventories of options of discourse (and charts graphically illustrating the argumentative choices). Indeed, one of the hallmarks of A World of Struggle is how heavily it focuses on the language that constitutes, in Kennedy’s account, the familiar realities of global governance, from the interstate system to the global economy. There is also, as I will take up later, the extravagant political hope that Kennedy never imposes on his readers but allows to lurk on the margin as an attractive but vague possibility.

Altogether, Kennedy’s new book reminds his old readers and instructs his new ones why he is, without doubt, the single most important innovator in international legal thought of the past several decades, a fact proved not only by his own arguments but also by his extraordinary influence. Inaugurating a “new stream” of scholarship on international law, Kennedy has brought the field out of its doctrinalism and parochialism into conversation with social thought and humanistic inquiry. With few possible contenders, like his close associate Professor Martti Koskenniemi, Kennedy may have done the most to make the “invisible college” of international lawyers visible, or at least interesting, to those outside it in diverse fields of academic pursuit. And this book takes that remarkable achievement to a new level. As a result, this is the rare text occupied with international law that is likely to be legible by — indeed, exhilarating to — outsiders to the field, elsewhere in the legal academy and beyond.

This Review focuses on what is newest in the book: Kennedy’s development of a theory of expertise to map the terrain of contemporary global governance. The Review proceeds in six parts. Part I begins my reconstruction of Kennedy’s theory of expertise by emphasizing the centrality of struggle to his account. Part II then provides an overview of the core of A World of Struggle, rehearsing Kennedy’s argument that endemic struggle explains the role of expertise in global governance. Part III completes my survey of the work by showing how Kennedy applies his general theory of expertise to international law.

From reconstruction, the Review then turns to contextualization and critique. Part IV puts pressure on Kennedy’s theory by placing it in the setting of argument from Bacon to Foucault concerning the relation of knowledge and power. A theory of global power that is discursive in general and structuralist in particular will have the vices of its virtues. Experts do no more than talk, and it is tempting to believe an analysis of their discourse goes further in explaining their role than it does. In particular, it may scant causation outside the frame of language and focus on the processes of rule at the expense of outcomes. Part V takes up Kennedy’s case study on the law of war as an instantiation of how his theory of expert knowledge works. Part VI concludes by examining whether Kennedy is subject to his own analysis and how he hints at the promise of a form of responsible power beyond expertise. Most worrisome about the book is that Kennedy is driven to a skepticism of expertise so withering that the sole alternative he can recommend — a potentially empty one — is what he calls “unknowing.”

Bradley: The Supreme Court as a Filter between International Law and American Constitutionalism

Curtis A. Bradley (Duke Univ. - Law) has posted The Supreme Court as a Filter between International Law and American Constitutionalism (California Law Review, forthcoming). Here's the abstract:

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends a particular role for the Supreme Court in the area of foreign relations law, which is to act as a filter between international law and the American constitutional system. In such a role, the Court does not act as an impermeable barrier to international law but rather ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with the structure and values of the constitutional system. This filtering role is appropriate, the essay contends, because international law is generated through processes that often make it ill-suited for direct application in the U.S. legal system, and because international law is frequently designed to perform functions different from the ones demanded of domestic law. Using a number of the cases discussed in Justice Breyer’s book, the essay provides examples of the Supreme Court’s filtering role in four scenarios: First, the intersection of treaties and individual constitutional rights; second, the relationship between the treaty power and American federalism; third, delegations of authority to international institutions; and fourth, the domestic application of customary international law.

Kaye & Raustiala: The Council and the Court: Law and Politics in the Rise of the International Criminal Court

David Kaye (Univ. of California, Irvine - Law) & Kal Raustiala (Univ. of California, Los Angeles - Law) have posted The Council and the Court: Law and Politics in the Rise of the International Criminal Court (Texas Law Review, forthcoming). Here's the abstract:

The International Criminal Court is the most significant development in international justice of the 21st century. The UN Security Council is the most powerful institution in the international legal order. This review essay explores the complex and often contentious relationship between these two bodies via an examination of David Bosco’s excellent recent book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford 2014). The ICC has over 120 member states, but only two permanent members of the Security Council. We explain the uneven and unusual evolution of the relationship between law and politics with regard to the ICC, and we explore the difficult balance struck between the imperatives of justice on the one hand and, in Bosco’s words, “a turbulent world where power matters” on the other. We describe and analyze how the Council has used—and ignored—the Court when it decides to. Finally, we conclude with some concrete and implementable recommendations for a stronger Council-Court relationship.