(image source: OUP)
Koskenniemi’s Lauterpacht: A ‘Gentle Civilizer’? (Robert Schütze)
DOI 10.1093/ejil/chaf069
Abstract:
Hersch Lauterpacht’s normative project has been subject to a number of excellent studies in the past – most notably by Martti Koskenniemi. The central image of the latter’s ‘Lauterpacht’ is, famously, that of a backward-looking thinker: Lauterpacht is portrayed as a ‘natural lawyer’ who nostalgically looks back into the 19th century as the last representative of a ‘Victorian tradition’ in international law. This article wishes to critique and challenge this influential intellectual portrait. In order to do this, it revisits Lauterpacht’s rich academic oeuvre in three sections. Section 2 begins with a reconstruction of Lauterpacht’s understanding of the judicial function – a function on which much of Koskenniemi’s Lauterpacht hinges. Section 3 explores the legislative function within Lauterpacht’s international legal order, while section 4, subsequently, investigates the ‘function’ given to natural law in Lauterpacht’s normative project. Section 5, finally, offers a critical challenge to Koskenniemi’s ‘Lauterpacht’ and re-evaluates the place that he should be given within the history of 20th-century international law. A conclusion contends that Lauterpacht is best characterized as a utopian international federalist, whose supranational legacy has largely remained unredeemed.
A History of the Hague Academy’s First Century: Computational Insights from the Recueil des cours (Damien Charlotin & Michael Waibel) [OPEN ACCESS]
DOI 10.1093/ejil/chaf058
Abstract:
The Hague Academy’s flagship publication, the Collected Courses / Recueil des cours, sheds light on the evolution of international law over the last century. Our computational analysis reveals a dynamic field that expanded into new domains even as other fields receded into the background. Headquartered in the Netherlands and established with US funding, the Hague Academy was, from the outset, a Western institution. Its Collected Courses and their authors underscore this legacy. We tested two hypotheses through computational analysis: first, that the Academy has thus far under-delivered on its aspiration of being representative of all regions and legal traditions and, second, that the characteristics of the Collected Courses, such as length, language and topics, have changed over the Academy’s first century in light of political developments and shifting policy priorities. Our findings confirm both hypotheses. Empirically mapping the characteristics of the courses and the lecturers over the past 100 years affords a ‘bird’s eye’ view of the Hague Academy that allows for a better understanding of its evolution. The findings of our data analysis provide the groundwork for deeper scholarly inquiry into how they might interconnect and relate to the construction of international expertise and authority.
International Environmental Law after Half a Century (Jorge E. Viñuales)
DOI 10.1093/ejil/chaf065
Abstract:
This symposium assesses the evolution – or, more neutrally, the trajectory – of international law as it relates to the environment in the last half-century. In the decades since the 1972 Stockholm Conference on the Human Environment and until 2025, a watershed for climate litigation (but for little else), the development-environment equation that haunts every environmental negotiation, every instrument and much of the case-law became only more polarized. In this introductory article, I discuss three main aspects of this assessment, as they arise from the contributions to this symposium: (i) the case for reconsidering the overall retrospective narrative of international environmental law; (ii) the possible reasons explaining its inability to address humanity’s geological impact; and (iii) the role of international law in relation to the balancing of the terms of the development-environment equation. The purpose is not descriptive; it is analytical, and sometimes critical. It is an effort to provide the context that is most relevant for an understanding of these contributions.
Reflections on the Structure of International Environmental Law after Half a Century (Edith Brown Weiss & Lydia Slobodian)
DOI 10.1093/ejil/chaf056
Abstract:
We inhabit a new geological epoch – the Anthropocene – in which humans are the major force affecting the Earth System, with potentially catastrophic results. We also live in a kaleidoscopic world with many actors, in addition to states, many different legal instruments and abrupt, rapid changes in issues and coalitions. Increasingly, we face problems of commons and public goods at multiple geographical levels. This is the reality that international environmental law now must govern. While this body of law has had certain successes in the last half-century, progress in many areas has been incremental. As this article argues, international environmental law must undergo transformational change that takes account of these critical changes in the global context, reconsiders the adequacy of legacy legal structures and treats the Earth as a holistic system with humanity as an integral part. Specifically, it needs to overcome five disconnects: (i) between the narrow anthropocentric scope of legal frameworks and the integrated character of the Earth System; (ii) between the siloed and ad hoc approach to individual environmental problems and their integrated connection in the Earth System; (iii) between the legal need for certainty and the inherent uncertainties and changes in the relevant science; (iv) between the legal prioritization of the present generation and the needs of future generations; and (v) between the theoretical recognition of the rights of marginalized and vulnerable communities and indigenous peoples in sustainable development and their practical exclusion from participation and justice.
The Rise of International Environmental Law, 1946–1993: Narrow Limits and Extensive Tasks (Outi Penttilä & Martti Koskenniemi) [OPEN ACCESS]
DOI 10.1093/ejil/chaf060
Abstract:
Environmental lawyers have devoted little attention to their discipline’s past, and when they have done so, they have often narrated the past as showing that the field is becoming progressively more self-aware and sophisticated so as to reach its present stage of maturity. In this article, we trace a somewhat different course. We follow the emergence of the field from the 1950s to its eventual collapse into ‘sustainable development’. To do this, we examine the processes that created and shaped its boundaries in such a way that it gradually came to see itself as a specific type of professional project with a blueprint for international legal reform. We examine the way in which topics became included in and excluded from the field. And we focus especially on the diplomatic, professional and academic tensions that shaped the field and eventually led it from its early environmentalist orientation to its present-day efforts to engage with wider issues of social development and international justice.
International Environmental Law: A Law of Side Effects ? (Jorge E Viñuales)
DOI 10.1093/ejil/chaf057
Abstract:
A reader examining a contemporary account of international environmental law 20, 30 or 50 years from now may be interested not only in its accuracy but also in what the account conveys of our own generational perception of our past. By then, several features will have become evident to that reader, which our generation missed or under-estimated. One above all is likely to connect our and their perception of what international environmental law had to face: humanity, through its production and consumption processes, is changing not only human history but also the dynamics of the entire Earth System in what some see as a new geological epoch defined by humans, the ‘Anthropocene’. This major fact is and will remain with us, and the extent to which it can be addressed depends on whether we see it and integrate it in our policies. This article argues that such is not the case of the social practice we call international environmental law, and this is, above all, for a very specific reason: international environmental law is built around an asymmetry between the legal organization of production and consumption processes – the ‘transaction’ – and the regulation of their side effects or ‘negative externalities’. At the core of international environmental law lies a deliberate effort to preserve legal space for the transaction – the very processes that led us into the Anthropocene – while aiming to minimize its negative side effects for the global environment. It is an odd mismatch, akin to a legal requirement to keep the dam gates open while also requiring that the flooded areas be kept as dry as possible. International environmental law is faced with impacts affecting the geological timescale, but it is structured to preserve the cause of the problem and focus on side effects unfolding in a human timescale.
Book reviews
- Natasha Wheatley, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Ville Kari)
- An International Anomaly. Colonial Accession to the League of Nations, by Thomas Gidney (Felix Lange)
- Paulo Borba Casella. International Law, History and Culture (Michel Erpelding)
Read the journal here.
