Articles

Koskenniemi’s Lauterpacht: A “Gentle Civilizer”?

in 2025, 36 European Journal of International Law, Forthcoming

Summary: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 nineteenth 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 he should be given within the history of twentieth-century international law. A Conclusion contends that Lauterpacht is best characterised as a utopian international federalist, whose supranational legacy has largely remained unredeemed.

‘Victorian’ Traditions: British International Law Scholarship, 1830-1914

in 2025, 74 International and Comparative Law Quarterly, 409-435

Summary: What are the philosophical and normative orientations of British international law scholarship during the Victorian era? This article explores and answers this question in three complementary steps. It begins with an analysis of the ‘public’ international law textbooks after 1830 to show that, instead of a single legal tradition, there coexisted three competing traditions during this period: a ‘naturalist’, an ‘historicist’ and a ‘voluntarist’ tradition. These three Victorian traditions will, in a second step, be studied in the context of ‘private’ international law—a discipline that developed and received its name during this period. A third section finally offers a detailed examination of the transformative work of Lassa Oppenheim, which straddled the Victorian nineteenth century and the ‘modern’ twentieth century. In revisiting the normative project(s) of Victorian international law, the article hopes to critique three prominent views in the contemporary academic literature. The first view holds that voluntarist State positivism exercised a dominant influence on British international law scholarship after 1830; a second view has claimed, relatedly, that during this period an idiosyncratic ‘English’ approach to international law emerged; and a third view has famously suggested that there was a ‘radical’ break in the discipline of international law around 1870.

Integration-through-Law: Grand Theory, Revisionist History

in 2025, 4 European Law Open, 162-200

Summary: How has the European Union been integrated in the past? Legal academics have traditionally pointed to the Court of Justice and to the broader idea of an‘integration-through-law’. Through its supranational jurisprudence, the Court– not the EU legislature– was thus placed at the centre of the European integration project. The underlying reasons for this dominance of constitutional‘law’ over legislative‘politics’ have thereby been the subject of three famous explanations: the‘equilibrium theory’ (Weiler), the‘asymmetry theory’ (Scharpf) and the‘over-constitutionalisation theory’ (Grimm). What are the merits of these grand theories of European integration when measured against the historical record? This article hopes to explore this question in the context of the internal market. Its historical revision begins with an analysis of the respective spheres of normative and decisional supranationalism during and after a foundational period (Sections 2 and 3). This is followed by an examination of the meaning and significance of the Cassis de Dijon judgment in the late 1970s. Through this revolutionary case, a dialectical relationship between the EU Court (‘law’) and the EU legislator (‘politics’) emerges (Section 4) that ultimately leads to the spectacular rise of EU legislation (Section 5) after the SEA. This transformational relationship will provide the critical lens for a historical revaluation of the three grand theories of legal integration (Section 6).

British Utilitarianism after Bentham: Nineteenth-Century Foundations of International Law II

in 2024, 26 Journal of the History of International Law, 243-284

Summary: What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article, however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.

German Idealism after Kant: Nineteenth Century Foundations of International Law

in 2023, 25 Journal of the History of International Law, 105-141

Summary: What are the legal principles of German idealism in the long nineteenth century; and what conception(s) of international law do they offer? Opposing Kantian rationalism and its formalist law, two idealist reactions do emerge in the early decades of the nineteenth century. The first is offered by Hegel whose conception of state law will make him the principal representative of the future deniers of an objective international law. The second reaction comes from the German Historical School, whose moral and legal understanding of the people(s) does – on the contrary – develop a positive conception of international law based on a ‘society’ of nations. How, and to what extent, were these two idealistic approaches reflected in the international law textbooks of the age? This article investigates this question and finds that it is unquestionably the Historical School that came to dominate international law thinking in the long nineteenth century – and that not just in Germany but also in Italy and Great Britain. The nineteenth century is thus decidedly, under the influence of Savigny and the Historical School, a metaphysical century centred on an intrinsic connection between morality and law.

Demoicracy in Europe: Some Preliminary Thoughts

in 2022, 47 European Law Review, 24-51

Summary: What does the neologism demoicracy mean? If democracy is the “government” of the “people”, can there be a government of peoples? Are international organisations, like the United Nations, demoicracies; or should the United Kingdom, as a multi-nation state, be viewed as such? Within the last decade, the idea of demoicracy has developed considerable traction, especially within the political science literature on the European Union. Yet what exactly is demoicracy supposed to mean in this context; and what models of demoicracy have developed to explain the “realities” of a plurality of peoples governing together? This Working Paper aims to explore the theoretical and historical expressions of the curious concept of demoicracy. Section 1 starts by clarifying two important philosophical distinctions, namely the difference between popular sovereignty and popular government and, equally, the distinction between an (international) Union of States and a (national) Union State. Sections 2 offers a constitutional overview of the potentially demoicratic elements within the United States of America; while Section 3 analyses and compares the founding and government of the European Union in demoicratic terms. Section 4 critically presents the three main models of demoicracy that have developed in the contemporary literature on the European Union, with Section 5 introducing a – new – fourth model called “republican federalism”. A Conclusion makes a normative argument in favour of this fourth model from the point of view of the social and legal structure of the European Union.

Britain in the European Union: A Very Short History

in 2022, 13 (Suppl. 2) Global Policy, 39-46

Summary: From the start, Britain's feelings towards European integration were complex; and when Britain finally joined the ‘common market’ in 1973, its reasons were predominantly of an economic nature. Its profound doubts of any ‘federal’ or ‘political’ union would become a recurring theme throughout its membership; and, in later years, Britain's critical attitude towards transfers of legislative powers to the European Union found numerous expressions in a wide range of ‘opt- outs’. They gave the United Kingdom, in the words of the British government, a unique place within the Union. However, even this halfway house ‘inside’ and ‘outside’ the European Union could not prevent a British referendum in which the majority of British citizens decided to opt out of Union membership altogether. This article offers a very short historical overview of British membership in the Union. Six key moments in the story of British membership will illustrate the complex relationship between Britain and the European Union.

“Re-Constituting” the Internal Market: Towards a Common Law of International Trade?

in 2020, 39 Yearbook of European Law, 250-292

Summary: Are the trade philosophies behind the EU internal market and the WTO inter- national market converging or diverging; and are we, or are we not, moving towards a ‘common law of international trade’? Twenty years ago, an interesting— and swiftly famous—answer to this question was given by Joseph H.H. Weiler. Studying the ‘constitution of the common market’, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This article argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this ‘revisionist’ result mean for EU law scholarship in general? If EU constitutionalism wishes to ‘re-constitute’ its object of study properly, it needs to abandon the abstract ways of philosophizing that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

"Re‐reading" Dassonville: Meaning and Understanding in the History of European Law

in 2018, 24(6) European Law Journal, 376-407

Summary: There are a few 'mythical’ judgments that every student of European integration has read or ought to have read. Dassonville is one of these judgments. The Court here makes one of its‘most famous pronouncement[s] ever’; and yet very little historical research on where the Dassonville formula came from and what it was intended to mean in 1974 has yet been undertaken. The conventional wisdom holds that the Court offered a hyper‐liberalist definition of the European internal market, which radically dissociated itself from the conceptual shackles accepted in modern international trade law. According to this view, Dassonville represents the substantive law equivalent of Van Gend en Loos. This traditional view, it will be argued, is simply not borne out by the historical facts. A contextual interpretation indeed shows a very different meaning of Dassonville; and a closer author‐centric analysis reveals a very different understanding of the Dassonville formula in its historical context.

Judicial Majoritarianism Revisited: “We, the Other Court”?

in 2018, 43(2) European Law Review, 269-280
Reprinted in the 2018 edition of European Current Law.

Summary: Twenty years ago, an interesting – and swiftly famous – answer to the legitimacy question in relation to the judicial creation of the EU internal market was offered by Miguel Poiares Maduro. Heavily influenced by the “representation-reinforcing theory of judicial review”, developed by J. H. Ely, and ingeniously entitled “We, the Court”, the book argued that the jurisprudence of the Court of Justice had been seriously misunderstood when identified with neo-liberal deregulation – a phenomenon that Maduro associated with the U.S. American idea of “economic due process”. For instead of protecting minority economic rights against national (democratic) regulation, the European Court showed a “majoritarian activism”. The judicial review of State legislation by the Court was thus characterised as “a kind of [Union] legislative process”, in which the Court operates as a quasi-legislature that judicially harmonises diverse national rules “in accordance with an “ideally drafted” representation of all States’ interest”. How correct was that description then (and now), and what normative arguments did Maduro propose to justify – and limit – the idea of “judicial majoritarianism”? This – late – “review” revisits the central premises of the famous monograph and subjects them – with the benefit of 20 years of hindsight – to critical scrutiny in the hope of re-opening discussions on the legitimacy of and justice in the internal market.

From the “Closed” to the “Open” Commercial State: A Very Brief History of International Economic Law

in 2017, 19(4) Revue d'histoire du droit international, 495-524

Summary: Commerce had become a “reason of state” in the eighteenth century. With the publication of Smith’s Wealth of Nations, the idea that free international trade was economically beneficial however gradually gained prominence. The long nineteenth century indeed saw timid – bilateral – attempts to implement the new politico- economic philosophy. Yet the First World War and the Great Depression destroyed almost all trade liberalisation already achieved, and the neo-mercantilist policies of the 1920s and 1930s seemed to turn the wheels of commerce backwards. Nonetheless, after the Second World War the belief that a peaceful world order could only be founded on a stable international economic order emerged strengthened; and a number of institutional attempts to liberalise – and harness – the world economy were immediately made, culminating in the creation of the 1947 General Agreement on Tariffs and Trade.

Conclusion: Article 267 TFEU and EU Federalism

in 15 European Journal of Legal Studies, 221-227

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Parliamentary Democracy and International Treaties

in 2017, 8(56) Global Policy, 7-13

Summary: Classic constitutional thought considered the power to conclude international treaties to fall within the executive’s exclusive domain. But this nineteenth-century logic hardly convinces in the twenty- rst century. For the function of international treaties has dramatically shifted from the military to the regulatory domain; and in the wake of this‘new internationalism’, the traditional divide between ‘internal’ and ‘external’ affairs has increasingly disappeared. Has this enlarged scope of the treaty power also triggered a transformation of its nature; and in particular, has the rise of‘legislative’ international treaties been compensated by a greater role accorded to parliaments? This article explores this question comparatively by looking at the constitutional law of the United States and the European Union. Within the United States, international treaties were traditionally concluded under a procedure that excluded the House of Representatives; yet with the rise of the Congressional-Executive Agreement in the twentieth century, this democratic deficit has been partially remedied. We find a similar evolution within the context of the European Union, where an increasing‘parliamentarisation’ of the treaty power has taken place. Yet a democratic debate here nevertheless also continues to exist.

Two-and-a-half Ways of Thinking about the European Union

in 2016, 53(3) Politique européenne, 28-37

Summary: This article argues that the sui generis theory is a ‘negative’ and ‘unhistorical’ theory. It lacks explanatory value for it is based on a conceptual tautology (Hay, 1966, 37): the European Union is…. what it is; and it is not…. what it is not! Second, the sui generis theory moreover only views the Union in negative terms – it is neither international organisation nor Federal State – and thus indirectly perpetuates the conceptual foundations of the Westphalian tradition. Is there a better way of thinking about the European Union? This article argues that ‘federal’ thinking provides a rich key to unlocking the nature of the European Union.

Of Types and Tests: Towards a Unitary Doctrinal Framework for Article 34 TFEU?

in 2016, 41(6) European Law Review, 826-842

Summary: What market model should determine the boundaries of negative integration, and in particular: what test should the Court apply to Article 34 TFEU? After Keck, there is no single answer to this question. Having expressly acknowledged the existence of different tests for different types of measures, the post- Keck Court develops three jurisprudential lines that follow three different market models. While confining measures regulating selling arrangements to an international model, the Court also confirms the parameters of the Cassis model for product requirements; and with Italian Trailers, it cultivates a third jurisprudential line on consumer-use restrictions that comes close to a national market model. It is in the context of this third line that the Court elevates the market access principle to centre-stage; and it is this development that has prompted the question how the three jurisprudential lines relate to each other. Have they remained separate – parallel – lines; or have they converged in a single doctrinal framework that generally applies to all measures falling within Article 34? In Ker-Optika and its progeny, the Court appears to rhetorically combine all three lines in an unitary framework; yet various ambivalences within this doctrinal solution have remained. This article explores the possibilities for a doctrinal framework and charts the unstable post-Keck jurisprudence on Article 34 TFEU in light of such an unitary framework.

Tax Barriers to Intra-Union Trade: American ‘Federalism’, European ‘Internationalism’?

in 2016, 35(1) Yearbook of European Law, 382-409

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The Development Policy of the Union: A Constitutional Overview

in 2013, 15 Cambridge Yearbook of European Legal Studies, 699-718

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European Fundamental Rights and the Member States: From "Selective" to "Total" Incorporation?

in 2012, 14 Cambridge Yearbook of European Legal Studies, 337-361

Summary: In parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may, in certain situations, equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nevertheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.

"Delegated Legislation" in the (new) European Union: A Constitutional Analysis

in 2011, 74(5) Modern Law Review, 661-693

Summary: This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last ¢fty years. First, the Court of Justice developed judicial safeguards in the form of a European non-delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the de¢ning characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.

Three "Bills of Rights" for the European Union

in 2011, 30(1) Yearbook of European Law, 131-158

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From Rome to Lisbon: "Executive Federalism" in the (New) European Union

in 2010, 47(5) Common Market Law Review, 1385-1427
Romanian Translation: Da la Roma la Lisbona: “Federalism executiv” in (noua) Uniune Europeană, (2011) Revista Română de Drept European 15-49

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On "Federal" Ground: The European Union as an (Inter)national Phenomenon

in 2009, 46(4) Common Market Law Review, 1069-1105

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'Reforming the "CAP": From "Vertical" to "Horizontal" Harmonization'

in 2009, 28(1) Yearbook of European Law, 337-361

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Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?

in 2009, 68(3) Cambridge Law Journal, 525-536

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Lisbon and the Federal Order of Competences: A Prospective Analysis

in 2008, 33(5) European Law Review, 709-722

Summary: The clarification of the European Union's federal order of competences was one of the principal objectives behind the constitutional reform route leading from Laeken to Lisbon. After 50 years of incremental growth, principled definitions and a clear division of the European Union's competences were needed to bring Europe closer to its citizens. The promise of greater transparency would not be fulfilled by the Lisbon Treaty. On the contrary, if the Treaty ever came into force, it would represent a step backwards. First, the wording of the European Union's exclusive competences, especially as regards implied external powers, will imperfectly reflect the constitutional status quo. Secondly, shared competences have been defined with the vocabulary of concurrent competences. Thirdly, the re-conception of complementary competences will increase the instances of "competence cocktails" within policy areas. Finally, the presence of "unofficial" competence types will erode the European Union's future order of competences.

Dual Federalism Constitutionalised: The Emergence of Exclusive Competences in the EC Legal Order

in 2007, 32(1) European Law Review, 3-28

Summary: The constitutional philosophy of dual federalism is based on the idea of dual sovereignty. The federal and the state governments are regarded as co-equals, which operate independently within their respective spheres. Dual federalism rejects the idea of a hierarchical relationship between constitutional "levels". In line with that federal philosophy, the constitutional architecture of dual federalism is based on mutually exclusive powers. The idea of exclusive powers belonging to the European Community has been a judicial creation. The article revisits the emergence of exclusive competences in the Community legal order. Beyond the Court's "pointillist" jurisprudence, various attempts have been made to search for broader constitutional guidelines. These grander constitutional schemes and the two intellectual rationales for constitutional exclusivity that underpin them will be analysed in turn. The concluding part discusses the constitutional (pre)conditions that were originally responsible for the emergence of exclusive powers in the Community legal order.

EC Law and International Agreements of the Member States - An Ambivalent Relationship?

in 2006-07, 9 Cambridge Yearbook of European Legal Studies, 387-440

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Co-operative Federalism Constitutionalised: The Emergence of Complementary Competences in the EC legal order

in 2006, 31(2) European Law Review, 167-184

Summary: Beyond the core areas of European integration, the federal division of legislative powers between the European Community and the Member States has long been characterised by a co-operative federalism: national legislators will typically be entitled to complement the common Community standard. Since the Single European Act, this philosophy of co-operative federalism has increasingly been "constitutionalised": ever more legislative competences constitutionally limit the power of the Community legislator to intervene in a particular policy field. The article traces the emergence of these complementary competences. It then examines the Community's environmental and public health policies in an attempt to analyse the constitutional regime governing these complementary competences. The article concludes that many central constitutional choices are still to be made by the European Court of Justice, in particular, whether there are hard or soft constitutional limits around the Community's complementary competences.

Supremacy without Pre-emption? The Very Slowly Emergent Doctrine of Community Pre-emption

in 2006, 43(4) Common Market Law Review, 1023-1048

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The Morphology of Legislative Power in the European Community: Legal Instruments and Federal Division of Powers

in 2006, 25(1) Yearbook of European Law, 91-151

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Parallel External Powers in the European Community: From “cubist” perspectives towards “naturalist” constitutional principles?

in 2004, 23(1) Yearbook of European Law, 225-274

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Organized Change towards an ‘Ever Closer Union’: Article 308 EC and the Limits To the Community’s Legislative Competence

in 2003, 22 Yearbook of European Law, 79 -115

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Dynamic Integration – Article 308 and Legislation in the course of the Common Market: A review essay

in 2003, 23 Oxford Journal of Legal Studies, 333-344

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