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1. Friedrich Kratochwil. The Status of Law in World Society: Meditations on the Role and Rule of Law

Author:
Jan Klabbers
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
<p>When Fritz Kratochwil published his classic Rules, Norms and Decisions in 1989, it was reviewed by an obviously bewildered David Bederman in the American Journal of International Law. Clearly, it seemed, here was something international lawyers should take note of, but equally clearly, Bederman, no intellectual slouch by any standard, had a hard time figuring out what made the book relevant, or even just interesting, for international lawyers. It seems Bederman was expecting something along the lines of a description of the role of law in global politics, but no such story unfolded. Instead, Rules, Norms and Decisions posited not a description, but a way of looking at the role of norms in international politics, and did so unlike much of what had gone on before: this was neither a variation on realism, nor riding the wave of institutional liberalism, nor anything like the New Haven approach or sociological jurisprudence or Henkin- style behaviouralism. As it turned out, Rules, Norms and Decisions became the closest thing to a manifesto of constructivism in the study of world politics, and therewith became pigeonholed as one of the three grand theories of international relations.</p>

2. The Emergence of Functionalism in International Institutional Law: Colonial Inspirations

Author:
Jan Klabbers
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
The theory of functionalism dominates the law of international organizations, explaining why organizations have the powers they possess, why they can claim privileges and immunities, and often how they are designed as well. Yet, the theory of functionalism is rarely spelt out in any detail, and its origins have remained under-explored. The purpose of the present article is to outline how functionalism came about by focusing on the 'pre-history' of international institutional law. To that end, the article studies the work of a number of late 19th, early 20th century authors on the law of international organizations, paying particular attention to the writings of Paul Reinsch. It turns out that functionalism, as developed by Reinsch, was inspired by his familiarity with colonial administration: colonialism and international organization both manifested cooperation between states. While this is no reason to discard functionalism, it does provide an argument for viewing international organizations more critically than functionalism habitually does.
Topic:
Law

3. The EJIL Foreword: The Transformation of International Organizations Law

Author:
Jan Klabbers
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
This article discusses the ongoing transformation of international organizations law. It first provides an overview (an anatomy) of the paradigmatic theory concerning the law of international organizations: the theory of functionalism. Subsequently, it investigates how functionalism came about and how, from the 1960s onwards, its flaws increasingly became visible. The argument, in a nutshell, is that functionalism, as a theory concerned with relations between international organizations and their member states, has little or nothing to say about the effects of international organizations on third parties – non-member states, individuals and others. Moreover, it is often applied to entities that can hardly be deemed 'functional' in accordance with the theory. All of this is increasingly viewed as problematic and forces functionalism to adapt. Whether it can do so is questionable, though, since some of its problems are structural rather than contingent. Things are illustrated by the invocation of the United Nations's possible responsibility for causing (or failing to prevent) the outbreak of cholera in Haiti.

4. Isabelle Ley. Opposition im Völkerrecht: Ein Beitrag zur Legitimation internationaler Rechtserzeugung [Opposition in International Law: A Contribution to the Legitimation of International Law-Making]

Author:
Jan Klabbers
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular institutions or practices but, rather, of open and possibly oppositional politics. Building on the work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the common world, as Arendt might have put it, and presupposes open politics. This politics is, so to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so much winning but taking part; what matters is not so much which policies will be adopted but the political process itself. Following Aristotle, taking part in public affairs is viewed as the most salient manifestation of human excellence: man being a political animal, he can do no better than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.
Topic:
International Law, International Organization, Political Theory, and Democracy
Political Geography:
Europe and Germany

5. The Transformation of International Organizations Law: A Rejoinder

Author:
Jan Klabbers
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Jan Klabbers responds to critiques by Laurence Boisson de Chazournes, André Nollkaemper and Guy Fiti Sinclair of his EJIL Foreword.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

6. EJIL Editors’ Choice of Books 2015

Author:
Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:
Human Rights, International Law, History, and Courts
Political Geography:
Africa, Europe, and South Sudan

7. Antonio Cassese, Five Masters of International Law: Conversations with R-J Dupuy, E Jimenez de Arechaga, R Jennings, L Henkin and O Schachter

Author:
Jan Klabbers
Publication Date:
11-2011
Content Type:
Journal Article
Abstract:
The great British philosopher Michael Oakeshott once observed that ideally teaching should be a personalized affair and take place one on one, as 'practical knowledge can be acquired only by continuous contact with one who is perpetually practising it'. This way, someone of shown mastery in a subject could guide a pupil along, instruct on points of detail, correct him or her where he or she would threaten to make a mistake, and carefully track the pupil's progress and suggest bespoke improvements. The fgpupil would learn far more effectively than he or she ever would in a classroom setting and, in particular, be able to reach beyond purely technical knowledge. After all, as Oakeshott explained elsewhere, education 'is the transaction between the generations in which newcomers to the scene are initiated to the world which they are to inhabit. This is a world of understandings, imaginings, meanings, moral and religious beliefs, relationships [and] practices'.

8. Mark Mazower. No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations

Author:
Jan Klabbers
Publication Date:
08-2010
Content Type:
Journal Article
Abstract:
International lawyers have long held international organizations in high esteem. Paul Reinsch, arguably the first author to write comprehensively on the law of international organizations about a century ago and largely responsible for laying the foundations for the functionalist approach to international organizations, already welcomed them as working for the common global good. The sentiment culminated in Nagendra Singh's classic statement that organizations serve the 'salvation of mankind'. States were considered bad; organizations, by contrast, were considered inherently good.
Topic:
United Nations

9. The Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinarity

Author:
Jan Klabbers
Publication Date:
12-2005
Content Type:
Journal Article
Journal:
The Journal of International Law and International Relations
Institution:
Munk School of Global Affairs at the University of Toronto
Abstract:
It goes without saying (but probably needs to be said) that the Foreign Office lawyer preparing a draft declaration on, say, the right to development, should have some understanding of development theory: she would be well-advised to know that there are various theories, not easily reconcilable with each other, on how development is best to be achieved. By the same token, it goes without saying (but might need to be said) that the practicing trade lawyer who does not have a grasp of the basic economics of international trade might not be best-placed to advise her clients. Likewise, it goes without saying (but perhaps needs to be said) that the practitioner at a Ministry of Defence contemplating whether or not to treat prisoners of war decently would enhance the quality of her decisions if she were to have an understanding of such things as game theory and reciprocity.