Thursday, June 09, 2005

Some brief reflections on the ESIL Research Forum 2005

Having had a week or so to reflect and digest, I wanted to post something, as promised, on the recent ESIL conference in Geneva, Switzerland. The European Society of International Law is, of course, a very new one - it was created just last year - but it seems an important one nonetheless, as evidenced by the quality of speakers and commentators attending this year's event. Add to this some magnificant weather and a generally stunning location on the shores of Lac Lemain, at the Graduate Institute for International Studies (HEI), and the scene was set for a memorable occasion.

The conference itself lasted from Thursday afternoon until Saturday evening; it kicked off and finished with plenary sessions, but Friday and Saturday mornings were devoted to more specialised, parallel workshops. The conference organisers made the decision to favour younger, up-and-coming scholars in these workshops, with the standard form being four such papers, and then a comment from a more established academic; this idea, it seemed to me, was a success, and meant that the quality and innovation presented in many of the workshops was high. It often seems at conferences that the quality of a paper is inversely proportional to the reputation of the presenter; the potential gains and losses for younger academics are simply much higher than for their more established colleagues. Between the plenary sessions, then, and the workshops, the conference organisers managed to strike an effective balance between younger and older scholars.

Another noteworthy point was the genuinely bilingual character of the proceedings. Often in supposedly bilingual organisations, one language is paid lip-service, and the other (usualy English) in fact dominates the proceedings. Not so here; although English was more commonly used, I don't think that there was one session in which a full paper was not presented in French; and those more comfortable in the latter language were also encouraged to use it in formulating questions to the panelists, regardless of which language the initial paper was presented in.

The first plenary session, although boasting an impressive panel, was perhaps a little disappointing; this, however, was the fault of the topic, "Are the rumours of the death of the Westphalian System exaggerated?". Understandably, the organisers wanted to open the forum with a topic sufficiently broad to be of interest to everyone; however, this one was so vague and open as to provide little or no coherence to the presentations or theme for the discussion. This is not to say that the individual papers were not enjoyable to listen to (those by Ian Brownlie and Brigitte Stern being the pick of the bunch for me), but there was perhaps little of real academic worth in them.

The keynote speech was given by Hisashi Owada, judge at the ICJ, focusing on the reform proposals for various UN institutions. He also ranged fairly widely over a broad set of issues, focusing on the Security Council and the ICJ. Always interesting to hear a judge discussing potential reforms of his own Court, even if most of those he suggested, such as opening up access to the Court to non-state parties or increased use of the advisory opinion function, are not new ideas. In terms of the Security Council, he signalled reform of the veto system as a priority.

Saturday morning's workshop on international legal theory was the one that I was most interested in, and it was, for me, the best session of the forum. Again, the topic itself was vague - "revisiting contemporary international legal theory", but the papers given were all interesting and innovative, even if dealing with at times completely different subject matters (not to mention struggling with the profound injustice of being asked to talk on legal theory at 8.45 on a Saturday morning...). Although there did seem to be an overall attempt to deal, in most papers at least, with critical approaches to international law, it did this from perspectives as varied as feminism, cultural relativism, or Nietzschean epistemology, then rounded off with a more positivistic attempt to "purify Kelsen". It fell to Koskenniemi to sum up and attempt to draw together the various threads; this he did by means of a memorable plea for the recognition for a norm of jus cogens against ever asking the question "how can this theory be applied in practice".

Other workshops that morning dealt with other "hot" international legal issues; treats to human rights in the war on terror, international protection of the environment, cultural heritage law, migrants and refugees, international administrations, and private actors in he international legal system. The last of these was another very interesting, if slightly schizophrenic, workshop, focusing both on the increasing (or otherwise) role of NGOs, and on the responsibilities of multinational corporations. This thus was really two panels rolled into one, and this impression was confirmed by the fact that there was little time for discussion of either section once the panelists and discussant had all had their say.

Friday afternoon was spent at the Palais des Nations, the UN buildings, in an extended International Law Commission session with Giorgio Gaja, the special rapporteur on the responsibility of international organisations. An interesting topic, and a great opportunity for participants to see inside the Palais; however, as there had been, at the time of the session, only 7 or so recommendations adopted, the two and a half hours dedicated to this single issue may have seemed a little excessive; perhaps, given that the entire ILC was present, the floor could have been opened at some point to a more generally discussion of the work of the Commission.

The closing plenaries fortunately managed to avoid the pitfalls of the opening one; a topic was chosen that was of interest to most if not all, but that was sufficiently well circumscribed to give the panels a sense of coherence and purpose. In effect, all of Saturday afternoon was devoted to a discussion of the recent ICJ adivsory opinion on the wall in the occupied Palestinian territory; firstly with some detailed discussion of the judgment itself, followed by a round table on the wider implications of the decision for international law more generally. Naturally, having a number of ICJ judges present lent a particular force to the critiques and calls for clarification that were peppered throughout the contributions.

In conclusion, a couple of gripes; one fairly minor, and one, linked, fairly major. The first is that each speaker was given only ten minutes in which to present their papers. This was a double-edged sword. On the one hand, it did mean that, more often than not and despite the fact that most panels had four speakers, a chair, a convener and a discussant to speak, there was a significant amount of time left over for questioning at the end. On the other hand, ten minutes is not at all long to develop an argument in any great depth or detail - a shortcoming that must be felt all the more clearly when panel topics are so broadly framed. This, however, was compounded even further by the more major failing: namely, that the papers and presentations were not made available to those attending the sessions in advance. This meant that not only did the presentation have to be fast, but it had to be performed to an audience who were coming to it absolutely "cold", so to speak. Both the complexity of the arguments advanced and the worth and detail of the subsequent discussions were hampered as a result.

All in all, then, my overwhelming impression is that the forum was a thoroughly worthwhile experience, on many levels: academically, intellectually and socially. A real pity then that, in terms of the intellectual points at least, it must remain only an impression; the lack of a more detailed p-ackage of materials circulated significantly in advance has prevented it from crystallising into anything more substantive. Nonetheless, it bodes well for the future of the European Society of International Law; a society that seems to be maturing at a remarkable rate. Gone, this time, were the self-conscious attempts to fashion anything like a rigorously "European" sense of international law, and the anti-American posturing that can often accompany it, that seems to have characterised, to some extent at least, the inaugural conference in Florence last year. A European Society, as judge Bruno Simma noted right at the outset, that seeks not to challenge but rather complement the American Society strikes me as thoroughly desirable and well on the way to being realised. I'm already looking forward to Paris 2006...


Akbar said...

This was interesting. Thanks, Euan.

Several points:

(1) Ten minutes was REALLY not enough, but you could see the point the organisers tried to make. Discussion over monologues.

(2) At least for some panels, there was no chance to circulate the papers beforehand among all the attendees. The presenters themselves got each other's drafts only a week or so before the actual event.

(3) Some papers were very long. No conference host would be able to afford to do THAT much photocopying. Abstracts were made available to every registered attendee though. (Admittedly, not all were sufficiently informative.)

(4) I think you've been too - for lack of a better word - positive about the society's stance on multilingualism. Also, the ESIL's relationship to ASIL, I'd say, is far more ambivalent than its projected image of it.

(5) Now, really, Brownlie didn't say much, did he? [Other than that international law is actually really international and he doesn't like the way everyone thinks about Kosovo-99 but prefers rather to call it a "flaw in the existing international legal system".] Or would you disagree?

Euan MacDonald said...

Thanks for the comment, Akbar.

1) I see the point, but the absence of papers beforehand coupled with the short presentations meant that the discussion was not as in-depth as might otherwise have been.

2) and 3) Even making the papers available online a few days before the forum would have allowed those interested to get a better grasp of what was being argued.

4) You think that the Society should be monolingual? Or more multilingual than just English and French? One of the defining charateristics of Europe is its attempt to organise in more than one language - I'm pleased to see this carried through to the society. And I don't think that having a strong French langauge component was detrimental to the quality of the event. Had it been any other language, however, I wouldn't have been able to understand enough to make that judgement... As for ASIL, I'm not really sure; only that there wasn't such an overtly self-conscious attempt to define ESIL in opposition to it that there seems to have been last year.

5) You're right, Brownlie didn't say that much (no-one really did in that panel), but I still enjoyed his contribution. The part that stuck in my mind was the call for international lawyers to spend at least some time querying whether the facts of a situation warrant the application of a legal category, and not merely over the "existence" or otherwise of that category. To hear that as a critique of the Kosovo affair from such a dominant, old-school, mainstream voice was refreshing.

Euan MacDonald said...

p.s. Any chance you could send me your paper?

Akbar said...

(1) Absolutely agree. Had the same problem. The "theory" may have been right, but the "practical" side did not work.

(2) and (3) - true.

(4) In an ideal world, the members of the society would have been given the chance to choose among SEVERAL options, e.g.: (i) five or six "equally official" languages [why only English and French? why not also German (Triepel, Kelsen), Italian (Anzilotti), Russian [Tunkin, Pashukanis), etc.?]; (ii) several "official" languages alongside two or three working languages; (iii) two or three working languages only; and, say,(iv) one language only (to minimise the transaction costs).

Obviously, given the delicate nature of Europe's linguistic identity, no one in their sane mind would probably campaign for the last option (at least not if they hope to get invited the following year). Still, it'd be kinda nice to have been given some room for reflection.

Otherwise, the E of the "ESIL" doesn't really look that inclusive at all [is French supposed to be the stand-in for everything to the east of Dover?] and its IL bit doesn't really look that new in its conceptualisation [seems like they just copied what the Hague Academy and the World Court's founding grandfathers did; and I thought we were talking about a twenty-first century, forward-looking "new Europe" thing].

Finally, everything else aside, what's the real story with bilinguality here? Does ESIL want to come across as an institution motivated by considerations of linguo-diversity (along the lines of biodiversity) or mere efficiency? In other words, does it want to look like it's propagating bilinguality because it thinks this is the best way to fight Anglo-hegemony or because it thinks French is really as much a lingua franca of international law today as English? However you look at it, neither of these options admits of a straightforward endorsement. And yet all the maitres act as if this were not the case. Don't know about you, but I'm feeling kinda ambivalent about such kind of postures.

Mind you, I'd personally vote for multilinguality with both hands: few things could be more disastrous for the international legal project in the long run than having a monodimensional linguistic identity. Still, this does not mean, I should like to think, that one must necessarily feel content the moment the Anglophones carve out some affirmative-action space for French (or for that matter any other language). [Timeo Danaos et dona ferentes, anyone?]

To conclude, framing the matter in terms of "either Anglophonie or bilingualism," I'd say, obfuscates more about the ESIL's processes of self-constitution than it could possibly elucidate. Which raises the perennial question: cui bono?

(5) Except that Brownlie was actually hired by Serbia and Montenegro to argue their side in the Nato-Kosovo cases before the ICJ (which his clients, incidentally, lost). See, e.g.,

PS - definitely, but need to do some revising first.

Euan MacDonald said...

Good points.

In terms of the Society's language policy, I suppose I had just had very low expectations, and was thus presently surprised to see that English didn't dominate entirely. You're undoubtedly correct that this is setting my sights altogether to low.

Didn't know that about Brownlie, either; it does change things, although less than clear as to whether the facts of the situation on the ground in Kosovo would have justified the invocation of a right to humanitarian intervention should one be held to exist.