The chapter assesses the effectiveness of the ICJ. The authors set out an evaluative framework for assessing the Court’s effectiveness, adopting a goals-based analysis. They identify the ICJ’s goals, and then consider the structural features of the Court that assist and hinder it from achieving those goals. By reference to specific examples, the authors then consider whether the ICJ has achieved its goals in practice, concluding that its record of achievement produces mixed results, but highlighting the Court’s success in preserving confidence in international adjudication.

This chapter explains the Court’s significant role as the ‘master of the sources’ of international law. The author considers what he defines as the ‘repressive dimension of Article 38’, before turning to consider the ways in which the Court has concretely used its role in respect of the sources of international law. Finally, the chapter critically examines how repression and mastery can often work together in international legal thought.

The International Court of Justice held its first sitting on 18 April 1946 and heard its first two cases in 1948: it heard preliminary objections in The Corfu Channel Case from late February to early March, and it held hearings in the advisory opinion on Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) in late April. Those first two cases were emblematic of the kinds of disputes that the Court would eventually hear and resolve as part of its ordinary caseload: they both dealt with practical issues, with significant political implications, and were an opportunity for the Court to provide guidance to the broader international community on disputed issues of international law. They provided the Court with scope to fulfil its mandate as the principal judicial organ of the United Nations; to function as a prominent interpreter of international law, as it is used and applied in practice. As international law has become more present in global policy-making and in academic and journalistic commentary, the International Court has come to occupy an essential and increasingly visible role in international relations, and has exercised jurisdiction over a significant number of international disputes addressing the same matters as are being wrestled with in the halls of the United Nations, and in ministries of foreign affairs across the world, and are being discussed as leading stories in international newspapers.

The second part concludes with a chapter on effective advocacy before the ICJ, by Samuel Wordsworth QC and Kate Parlett. It examines both written and oral advocacy before the Court, with the fundamental objective of the advocate in all cases being to persuade, making it essential to consider what will be of most utility to the judges when they come to reach a decision on the case. They also emphasise the significant role the advocate has to play in the pre-litigation stage and in early procedural exchanges: she or he must bear in mind that they have a dual function of presenting the best case for the client to the Court, while also persuading the client as to the most effective way in which to do that.

This chapter assesses the contribution of the ICJ to the law of international organisations. It emphasises the limited role of the Court in this field, setting out the multiple reasons for this: parts of the law were developed before the Court commenced its work; and the Court has only had intermittent opportunities to consider it through its cases. The author argues that the Court’s approach reflects a more general ambivalence of classic international law when it comes to international institutions: that it emphasises the centrality of States in the international legal system, notwithstanding the steps that have been taken by States to institutionalise significant areas of international law.

This chapter examines the law of treaties in the jurisprudence of the ICJ. The author highlights the Court’s position on key selected issues of interpretation: specifically the language of the treaty; time and treaty interpretation; and the role of policy. The chapter also considers issues of systemic integration, hierarchy and concurrence of rules.

The chapter provides a thorough analysis of the Court’s jurisdiction to order provisional measures and its procedure. The author identifies an evolution in the Court’s practice on provisional measures, with the Court most recently developing specific conditions for the indication of provisional measures. The author examines those conditions and their elaboration through the Court’s caselaw, together with the Court’s findings as to the binding effect of its provisional measures orders.

How do you build a pragmatic Europe? Well, as with any company in crisis, Europe must return to its core activity, which is to do that what improves the quality of life of citizens, and only where they do better than a lower administrative level. In doing so, Europe must discard ballast, develop a lean and mean structure and pursue its own value model, instead of wanting to outperform other continents.

1. END OF THE JUGGERNAUT

Europe and the European institutions are victims of the inflation of bureaucracy, as the German sociologist Max Weber called this. An army of 50,000 officials should keep Europe on the right track. The bureaucracy has become its own community, its own ‘bubble’, with its own laws and its own privileges.

Some argue that this monster administration is the price of democracy. I think it is exactly the opposite. Spread over more than 50 buildings in Brussels and present in most countries of the world, the juggernaut is rather a source of alienation. Eurocrats usually write notes to each other, meet among themselves or inter-institutionally, as it is called. It is a closed cocoon that closes itself off from the citizen.

By analogy with large companies that are losing weight, Europe must also go on a diet. To do this there are many obstacles, both political and administrative.

1.1. THE ELECTED REPRESENTATIVES: OBSTACLES OF A POLITICAL NATURE

The Commission is a European body. That means that the Commission and its members work for Europe and not for their country. It is therefore pointless for Member States to want their country to have a commissioner. This does not make sense. Moreover, the commissioner is given a certain competence. How can he or she work for the ‘motherland’? Didier Reynders, for example, is a Justice Commissioner. That is all well and good, but what is in it for Belgium, his country of origin? And when a country enters or leaves the Union, a new commissioner has to be appointed or withdrawn. Due to the Brexit referendum, Jonathon Hill, who held the important portfolio of the banking union, resigned and was replaced by Julian King, who stayed on as UK commissioner until the referendum was translated into a real exit, three and a half years later, with the portfolio of security.

The founding fathers of Europe can look back with satisfaction. Few believed in Schuman and Monnet’s plan. Getting the legendary warriors around the table or, more importantly, bringing their interests together in one organization seemed like a mission impossible. And yet it worked. Gone are the days when Germany and France were on the warpath every 20 or 30 years. And that is what it was all about in the end.

But does that success still appeal to young people? For Generation Z, war is something out of history books or in regions far away from Europe. Even the Ukraine conflict has not changed that mindset. The slogan ‘no more war’sounds hollow. Former combatants and ex-prisoners of concentration camps who can bring history to life with their testimonies are almost non-existent. The books by Anne Frank, Primo Levi or Jorge Sempr u n are stories from the past, from the old days. Moving, yes, but long gone. Cyberattacks and hackers appeal more to the imagination than trenches.

And would the founding fathers be happy to see the army of Eurocrats, empty plenary sessions and the travelling theatre from Brussels to Strasbourg? Would the founding fathers be happy if they were to see that Europe is absent in areas of paramount importance for citizens, such as migration policy? Would they be happy if they found that a coordinated approach to border controls in the fight against COVID-19 proved impossible? Would they be happy to see that the British people expressed their wish to leave the Union?

To answer these questions, we briefly look at the basic idea of Europe and analyse how this beautiful idea has developed, resulting in a Europe that has lost its connection with Europeans. In an analogy to Willem Elsschot’s marriage, we can say that for Europe, too, laws stand between dream and deed and practical objections arise. The marriage between Europe and its citizens, like most marriages, is therefore a bumpy road.

1. FROM GENESIS TO BREXIT

1.1. NO MORE WAR

23 June 2016: thunderclap from a clear sky. In a referendum, 51% of Britons are in favour of Brexit.

Europe needs a new narrative, a very simple and easy narrative. Just as a company has to reconsider its strategy from time to time, the same applies to Europe. Europe is neither a deus ex machina nor a scapegoat, but can make a real difference to European citizens in their daily life. Th ose citizens are the real stakeholders in the European story. A new impetus is only possible if Europe focuses on those areas where it can really make a difference for its citizens. Forget the cucumbers, the condoms and the tampons. Be pragmatic. Focus on the large, important works. We have called them the labours of Hercules.

Europe has proven that it can do so. The internal market and the euro have become feats that many envy. And yes, the process is slow. Rome was not built in a day. And yes, there have been construction errors, such as the decoupling of monetary and economic policy. But the European project has proven to be solid and able to navigate through turbulent waters and crises. Moreover, crises often appeared to act as an accelerator of the European integration process.

Crises like COVID-19 or the Ukraine conflict can also have this effect. The next-generation project is an unprecedented injection into the real economy. Financing through European loans would never have been possible without COVID-19, just like open strategic autonomy and the energy transition would never have gone so fast without the Ukraine crisis. Channelling that confidence, let us now commemorate Europe, not for its 65th anniversary, but by rethinking the role of Europe for the next decade based on the philosophy that Europe should be big in big things, small in small things. The twelve labours of Hercules can serve as a guideline here.

Let us be proud of our Europe instead of torpedoing it again and again. We are global players in Earth observation. We realized the monetary union. We have 450 million consumers with considerable purchasing power. We should not think of ourselves as the continent where the sun sets, but impose our legitimate wishes on other superpowers who are only interested in our market, but do not want to respect the environmental and social values that go with it.

Values, those are what matters. In the coming decades, values will be central. They will determine which economies have a future.

This is an ambitious book. The premise is that there is a need to modernise the appeal of Europe by developing a new narrative that (re)connects Europe’s citizens – its stakeholders – to the idea of Europe and specifically one that engages Generation Z. Rudy Aernoudt is eminently qualified to offer a new narrative. He has worked almost all of his professional career in European Union Institutions – in European advisory bodies, the European Council and the European Commission. His roles have included cabinet director at European level, Special Counsellor to the European Council President and chief economist. He has also held positions as Head of Cabinet in Belgium, at federal, Flemish and Walloon level. He has significant policy achievements. He designed and implemented the Joint European Ventures (JEV) programme to stimulate European companies to set up joint ventures with companies from other European countries. He co-founded the European Business Angel Network (EBAN) and he conceived the ESCALAR (European Scale-up Action for Risk Capital) that will double the capacity of the venture capital funds to support companies at their scale-up stage. Our paths crossed in the late 1990s when EBAN was being conceived and established, and we have remained in contact, albeit sporadically, since then.

Aernoudt starts by tracking the deepening integration of Europe. The European Union was created in 1957 when the Treaty of Rome was signed, initially as an economic union comprising six Member States, expanding to 28 members (following Brexit it now has 27 members), with several states seeking membership. Over this time, Europe has evolved from its origins as an economic union. The process of economic integration has deepened, culminating in the Single Market which, in turn, paved the way for the European Monetary Union, with the Treaty of Lisbon creating a coherent set of decision-making procedures. This has resulted in the acquisition of increasingly new competences moving into non-economic fields as laws have been translated into national legislation. Aernoudt highlights the increasingly complex interplay between the European Council and the European Parliament and the exponential growth of regulations and directives, much of which relates to the internal market, complicating the daily lives of ordinary citizens.

Founded in its current form in 1957, Europe has reached retirement age. However, it does not appear that Europe can rest on its laurels. In referendums, citizens systematically speak out against it. Populist movements in France and the Netherlands, among others, oppose Europe and are calling for the reintroduction of their national currencies. For the first time in the history of the European Union, a member has even chosen to leave the club. And during the post-Brexit negotiations, the COVID-19 crisis hit, which, like any crisis, gave rise to nationalist reflexes. How did it come to this? How can such a beautiful project – at least on paper – suffer such a significant blow? And what is next?

Europe is a phoenix in this regard. The deeper the crisis, the more is possible. The institutional crisis led to the single market project, the banking crisis led to the banking union, the COVID-19 crisis made possible what had never happened before – the issuance of European bonds – and the Ukraine crisis accelerated the energy transition. It is as if Europe can only arise and evolve as a result of crises.

Why write another book about Europe? A new book on Europe is published almost every week, for or against Europe. Everyone has an opinion about how to proceed and European experts are mushrooming. Most of these experts only know Europe from other books and write a new book about it that is often a mosaic of existing texts. Intertextuality, as the French philosopher Julia Kristeva calls it. We could call it ‘cut and paste’ culture today.

I therefore felt it was my responsibility to write about Europe based on my professional experience within the European institutions. A vision of someone who has experienced and lived Europe, as a European in daily life, but also from within, from the Brussels Eurocrat bubble. This explains the title of this book: Towards a New European Impetus Post-Brexit: A View Behind the Scenes.

My triple position as head of cabinet in Belgium, at federal, Flemish and Walloon level, was rather an interlude in my life. After all, I have worked almost my entire professional life for Europe. I have worked in the European advisory bodies, the European Council and the European Commission and attended the sessions of the European Parliament in Strasbourg countless times.

Books about Europe appear every week, but few are written by someone who is currently experiencing the European institutions from within. Rudy was my chief of staff during my presidency of the European Economic and Social Committee. He was Special Adviser to the Presidency of the European Council and held various positions at the European Commission. And in all of these functions, he acted more as an entrepreneur than as a civil servant.

Moreover, Rudy also knows Europe from the point of view of the Member States, as well as from that of the regions. He was in fact chief of staff in his own country, Belgium, at both regional and federal level. He was thus private secretary on the three levels, a unique achievement worthy of an entry in the Guinness Book of Records.

These multiple experiences are reflected in his book. We feel his passion for Europe. But also, we feel the desire for Europe to move forward. Instead of complaining about the crises that Europe is going through and has been through, the author argues that Europe is able to overcome these crises, and more importantly, to take advantage of them to progress and develop. He therefore calls for the COVID crisis not to be wasted, but to be used as a lever for the further integration of Europe.

However, the author is not a blind ‘Euro-lover’ who would like everything to be done at European level. He points out the danger, as also shown by Max Weber, that the formalism of bureaucracy can lead to cumbersome and rigid administrative procedures, even to a monopolization of power in favour of the bureaucrats’ interests. Bureaucracy is indeed a system that provokes resistance to change, a system that revolves around itself and loses its link with the outside world. The bubble of the Schuman roundabout, as the author calls it, is one of the main issues explaining the disassociation with the European citizen.

But this bureaucratic mechanism failed to extinguish the flame of the European dream for the author, a passion that keeps him looking at solutions instead of problems. This is what I admire most about him: a pragmatic spirit coupled with an unrelenting optimism. And since the author uses anecdotes in his book, allow me to do the same.