I have a short – and pretty critical – comment out today on EJILTalk! on last week’s judgments of the International Court of Justice in the Marshall Islands cases against India, Pakistan and the United Kingdom. The Marshall Islands had claimed that the three countries (and other nuclear-weapon states) were violating their international legal obligation to pursue nuclear disarmament. Now the Court, rather unbelievably, finds that the case cannot proceed to the merits as there was no ‘dispute’ between the parties when the application was submitted. A stretch of the meaning of ‘dispute’, as well as a capitulation to the nuclear powers, barely concealed under the veneer of formalist legal reasoning. More on this in post itself.
I have a new piece out on ‘Authority, Solid and Liquid, in Postnational Governance’. It formulates a number of initial ideas behind my project on liquid authority and forms a chapter in a volume on ‘Authority in Transnational Legal Theory’, edited by Maks del Mar and Roger Cotterrell and published by Edward Elgar Publishing. The volume does a great job in assembling engagements with the question of authority in the transnational sphere from very different perspectives, with contributions from Keith Culver & Michael Giudice, Neil Walker, Nicole Roughan and Horatia Muir Watt, among others. Very much worth reading! Details on the book can be found here; the online version is here. My chapter is freely available here – the abstract is below.
I have a new piece on “Pouvoir constituant and pouvoir irritant in the postnational order” out in the International Journal of Constitutional Law today. It forms part of a symposium on the continuing relevance of the idea of constituent power beyond the state, with a number of very interesting – and quite diverging – assessments. The point of my piece is that the current postnational order leaves little space for a meaningful role of constituent power, but that the idea lives on as a helpful irritant of political and societal structures which often remain beyond our control. A longer abstract is below. The full text of the article can be accessed here.
Pouvoir constituant and pouvoir irritant in the postnational order: Abstract
Constituent power is a key concept of the modern constitutional tradition, yet it encounters serious difficulties when transposed into today’s globalized world. Its radical promise, connected with the “ability to make a new beginning,” sits uneasily with a social and political context that seems out of reach and impossible to “constitute.” Yet the idea of constituent power continues to animate people in their efforts to reclaim agency and self-government in a landscape shaped largely by others. This article traces key challenges to the continuing force of constituent power in the postnational order and argues that, because of adverse institutional and societal conditions, this order is better understood as post-constituent: ascribing its origin to a pouvoir constituant would, under any plausible conception, stretch the notion too far. If at all, the idea of constituent power survives on a normative plane, potentially feeding a pouvoir irritantof global institutions with a precarious, often technocratic legitimacy basis.
Today our symposium issue on ‘Subsidiarity in Global Governance’ has been published in Law & Contemporary Problems – the fruit of a project that started more than four years ago and revisited the theme through two workshops at the Hertie School of Governance in Berlin and various iterations of papers, drafts and revisions. The result is a wide-ranging symposium with twelve articles that inquire into the potential and limits of subsidiarity in the global context from different theoretical angles and for different issue areas, such as human rights, international security, trade, investment, and labour regulation. The general idea is laid out in the framing paper by Markus Jachtenfuchs and myself; the other contributions come from a stellar cast that includes Andreas von Staden, Tomer Broude, Isabel Feichtner, René Urueña, Jorge Contesse, Andreas Føllesdal, Machiko Kanetake, Isobel Roele, Peer Zumbansen, Mattias Kumm, Kalypso Nicolaidis and Rob Howse. The symposium is fully open-access and can be found here – please have a look!
As part of the ICONS conference in Berlin, we’ll have a panel on ‘Subsidiarity on Global Governance’ in which we aim to discuss findings of our recent research project on the topic. We’ll have papers on the general theme (by Markus Jachtenfuchs and myself), on selective subsidiarity in the WTO (by Tomer Broude), on subsidiarity as a guiding principle in international human rights courts (by Andreas Follesdal) and on side-lining subsidiarity in collective security (by Isobel Roele). The papers are part of a broader symposium on the topic that will appear in Law & Contemporary Problems later in the summer. The panel, moderated by Grainne de Burca, will juxtapose different takes on subsidiarity and try to work out whether and to what extent the principle should serve as guidance for allocating powers in global governance. It will take place on Friday, 17 June, from 17:15 to 19:00 at Humboldt University in room BE2 E42. The overall conference programme is here – with lots of exciting talks and panels!
On 13 April the Graduate Institute will host a round table on ‘Russian Approaches to International Law’, which will discuss the recent book on the topic by Lauri Malksoo (University of Tartu). The event is co-organized with the Law Faculty of the University of Geneva. Participants will be, apart from the author, Laurence Boisson de Chazournes (University of Geneva), Olga Chernishova (European Court of Human Rights), Maria Issaeva (Threefold Legal Advisors LLC, Moscow), Fuad Zarbiyev (Graduate Institute) and myself. The discussion will start at 17:30. Details are here – all welcome, but please register on the site.
Today I have a short piece out in the review of the Graduate Institute, the Globe, on ‘Accountability in Global Governance: Europe as Laboratory, Vanguard, or Obstacle?‘. In this piece I trace different ways in which the European Union – through its judicial as well as political bodies – contributes to the construction of a global administrative law, but also acts in certain areas as an important obstacle to it. The text forms part of a broader symposium on Europe in the World which contains a number of interesting contributions from different disciplinary angles. The whole issue is available here.