Home Articles posted by Joseph Weiler

Best Practice – Writing a Peer-Review Report

Published on July 22, 2019        Author: 

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…

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EJIL Vol. 30 (2019) No. 2: In this Issue

Published on July 20, 2019        Author: 

This issue opens with three articles that address underexplored corners of international law. The first article focuses on the topic of customs unions. Adopting a historical perspective, Michal Ovádek and Ines Willemyns identify gaps and ambiguities in the contemporary legal definition of custom unions. They then conduct a comparative analysis to examine how different custom union agreements address these ambiguities. They observe that the design and performance of these agreements is affected by concerns over state sovereignty. Finally, they draw lessons for a possible post-Brexit EU-UK agreement regarding customs.

The second article, by Miles Jackson, discusses instigation to commit wrongful acts. He argues that contrary to the common perception, international law does include a general prohibition on instigation. In accordance with this prohibition, a state that induces or incites another state to breach its international obligations may be held responsible for an internationally wrongful act. According to Jackson, the prohibition on instigation is founded on a general principle of law accepted in many domestic jurisdictions, which should be transposed to international law.

Paolo Amorosa then explores a forgotten episode in the well-studied history of the international legal struggle for women’s equality. Whereas the common narrative dates the beginning of this struggle to the aftermath of World War II, Amorosa traces its roots to the signing of the Equal Nationality Treaty and the Equal Rights Treaty at the 1933 Montevideo Conference. In so doing, he takes a step towards the re-inclusion of early feminist activists in the dominant history of international law. Read the rest of this entry…

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The EU – A Community of Fate, at Last; Vital Statistics

Published on May 28, 2019        Author: 

The EU – A Community of Fate, at Last

I have great sympathy for the outburst of Donald Tusk on special places in Hell. I believe I was just as harsh or even worse in writing about the Cameron folly. At the time of writing, the final act in the Brexit farce is still unfolding. I am one of those Europeans who genuinely regret the departure of the United Kingdom – and I am not thinking just of the material consequences, as most are prone to do. A Europe without the UK is diminished. But I also respect the sovereign decision of the British people and, equally, I will of course respect a sovereign decision to change course, should that happen. Responsibility for the current shambles rests primarily on the very issue which so taxed Tusk: going into the referendum without any serious governmental assessment of the hows and whats and whens.

Some responsibility also falls on the Union. I thought that the decision to postpone any discussion of future relations before the divorce terms were settled wasted a precious year of joint reflection, negotiations and preparations. I thought then and still think that there was no reason not to run both tracks in parallel so as to avoid the very crunch that we now face. In private, some European leaders have admitted such to me.

And finally, I continue to find it not credible that the combined public authorities of the Union, the UK and the Republic of Ireland cannot come up with a Frontstop solution on the lines proposed here, thus diffusing the most explosive stumbling block for some semblance of an orderly exit. Read the rest of this entry…

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EJIL at 30; The Birth of EJIL

Published on May 28, 2019        Author: 

Some things never seem to change. It was, I believe, with a keen eye on emerging talent, that we published Martti Koskeniemmi as the lead article in Volume I, Issue 1 of EJIL. We thought it was appropriate when we celebrated our 20th anniversary to invite him to revisit what had by then become a classic. And for our 30th anniversary we had known for some time that we would invite Koskenniemi to be the author of our annual Foreword article. Have we lost our keen eye for emerging talent? I do not think so (see our Vital Statistics below). Koskeniemmi is like a good wine or spirit that loses nothing of its bite and yet offers a particular savour and mellowness as it ages.

We debated how to mark EJIL’s 30th anniversary: after all, we published a special issue at 20 and another celebration at 25. I looked at my Editorial for our EJIL at 20 issue. In some ways, it is a bit like all living creatures. There is something in their defining characteristics that remains constant. There is not much that I would add to that Editorial.

Still, there has been some innovation in the last 10 years: Think EJIL: Talk! (celebrating its 10th Anniversary) EJIL: Live!, The Foreword, Roaming Charges and the Last Page, the Debates, and more.

For the sake of nostalgia we reproduce here the earliest letter we can find from the birth of EJIL. Please be sitting when you take a look and kindly suppress the guffaws. (Yes, what happened to the English/French idea…?) It was all in earnest and good faith. But has your life turned out to be as your parents thought and maybe hoped when you were born? Read the rest of this entry…

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EJIL Vol. 30 (2019) No. 1: In this Issue

Published on May 27, 2019        Author: 

This issue opens, as noted in the introductory Editorial, EJIL at 30, with Martti Koskenniemi’s Foreword.

In our Articles section Valentina Vadi focuses on the evolving field of international legal history, exploring the adequate scale and perspective in this realm and stressing the importance of a pluralist, inclusive approach based on micro-histories in contrast to the still prevailing macro-histories. Hannah Woolaver analyses the intricate interplay between the domestic and international levels with regard to states’ treaty consent both in relation to treaty entry and exit. Focusing on three prominent examples – Brexit, the possible US abandonment of the Paris Agreement, and South Africa’s potential departure from the International Criminal Court, she fills a research lacuna regarding international legal recognition for domestic rules of treaty withdrawal and argues for an invalidation of withdrawal in the event of manifest violation of domestic law. Claire Jervis concludes this section with her article, which scrutinizes the questionable substantive-procedural dichotomy in international law. Taking the International Court of Justice’s famous Jurisdictional Immunities case as a starting point, she points towards the fallacies inherent in this binary approach.

We introduce a new occasional Series – The Theatre of International Law – with a piece by Lorenzo Gradoni and Luca Pasquet, ‘Dialogue concerning Legal Un-certainty and other Prodigies’. Further submissions in this vein are welcome. Read the rest of this entry…

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The European Dream Team

Published on February 12, 2019        Author: 

There will be a major ‘Changing of the Guards’ next year with the departures of Juncker, Tusk and Draghi – each of them remarkable in their own way – from the leadership team of the European Union. The incoming team will be facing a Europe that poses unprecedented challenges. Commissioner Oettinger went as far as characterizing Europe as facing ‘mortal danger’ from both within and without. I don’t exactly share the doomsday predictions as regards the Union, but the international and internal challenges are truly immense and require leadership commensurate with such.

Here is my Dream Team to lead the Union in the face of these challenges:

President of the Commission: Frans Timmermans

President of the Council: Angela Merkel

President of the European Central Bank: Christine Lagarde

At this point many readers might be chortling. Not because they necessarily disagree that this would be a formidable team to face off the likes of Trump and Putin, Salvini and Orbán. Or to face the truly daunting socio-economic challenges of the Union. But rather because it seems to defy any realistic vision of the European politics of appointments. Does it really? Suspend your disbelief for just a while. Read the rest of this entry…

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EJIL Roll of Honour

Published on February 12, 2019        Author: 

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2018:

Dapo Akande, Karen Alter, Tilmann Altwicker, José Alvarez, Alberto Alvarez-Jiminez, Maria Aristodemou, Loïc Azoulai, Björnstjern Baade, Lorand Bartels, Eyal Benvenisti, Eric Brabandere, Eva Brems, Carl Bruch, Michelle Burgis-Kasthala, Laurence Burgorgue-Larsen, Julian Chaisse, Damian Chalmers, Hilary Charlesworth, Vincent Chetail, Sungjoon Cho, Carlos Closa, Lawrence Collins, Marise Cremona, Philipp Dann, Kevin Davis, Alex De Waal, Erika De Wet, Bruno De Witte, Rosalind Dixon, Megan Donaldson, Rochelle Dreyfuss, Christoph Engel, Eleanor Fox, Francesco Francioni, Ronald Francis, Geoff Gilbert, Kirsty Gover, Gerhard Haffner, Michaela Hailbronner, Jeffrey Handmaker, James Hathaway, Laurence Helfer, Ellen Hey, Bernard Hoekman, Stefan Inama, Aline Jaeckel, Henry Jones, Daniel Joyner, Victor Kattan, Thomas Kleinlein, Michele Krech, Claus Kress, Andreas Kulick, Jürgen Kurtz, Tobias Lenz, Randall Lesaffer, Itamar Mann, Nora Markard, Petros Mavroidis, Franz Mayer, John McCrudden, Frédéric Mégret, Paul Mertenskötter, Timothy Meyer, Angelika Nussberger, Christiana Ochoa, Alexander Orakhelashvili, Stefano Osella, Diane Otto, Sundhya Pahuja, Jacqueline Peel, Steven Peers, Oren Perez, Niels Petersen, Marcela Prieto Rudolphy, Alexander Proelss, Sergio Puig, Kate Purcell, Surabhi Ranganathan, Kal Raustiala, Anthea Roberts, Nicole Roughan, Ruth Rubio-Marín, Tom Ruys, Marco Sassòli, Cheryl Saunders, Abdulhay Sayed, Stephan Schill, Edward Schramm, Joanne Scott, Ayelet Shachar, Kirsten Schmalenbach, Yuval Shany, Dinah Shelton, Vera Shikhelman, Philip Steinberg, Paul Stephan, Thomas Streinz, Péter Szigeti, Paulos Tesfagiorgis, Christian Tomuschat, Michael Trebilcock, Charles Tripp, David M. Trubek, Gus Van Harten, Jorge Viñuales, Andreas von Arnauld, Jochen von Bernstorff, Tania Voon, Michael Waibel, Rüdiger Wolfram, Margaret Young, Eyal Zamir, David Zaring, Andreas Zimmermann.

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EJIL Vol. 29 (2018) No. 4: In this Issue

Published on February 11, 2019        Author: 

On 9 December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide – the first universal treaty of human rights – was adopted by the United Nations General Assembly. This year marks its 70th anniversary and we pay tribute to its ‘founding father’, Raphael Lemkin, in this last issue of EJIL for 2018. Johann Justus Vasel preludes with a biographical vignette. In Roaming Charges we reproduce his recently discovered death certificate, and on the Last Page we feature a previously unpublished poem by Lemkin on the subject that haunted and drove him, ‘Genocide’. (We thank members of Raphael Lemkin’s family – Jane Lemkin, Peter Lemkin and Richard Lemkin – and friend, Nancy Steinson, for their kindness and generosity in sharing information with us.)

Jan Klabbers formally opens this issue with his Keynote Address on ‘Epistemic Universalism and the Melancholy of International Law’, delivered at the 2018 annual conference of the European Society of International Law, in which he diagnoses pathologies of international legal scholarship.

In our Afterword rubric, Lorna McGregor and Lorenzo Casini react to the EJIL Foreword ‘Upholding Democracy Amid the Challenges of New Technologies: What Role for the Law of Global Governance?’ by Eyal Benvenisti, published in our first issue of the year, and Benvenisti replies to his critics.

Following, we shift the focus to ‘New Voices’, with a selection of articles from the Sixth Annual Junior Faculty Forum for International Law. Veronika Fikfak, analyses how damages awarded by the European Court of Human Rights impact states’ behaviour. Drawing on (behavioural) economic analysis of law, she suggests new approaches on how to increase compliance. An Hertogen illuminates the conditions for analogical reasoning between domestic and international law. Ntina Tzouvala scrutinizes the dissolution of the Ottoman Empire and the emergence of statehood in the Balkans, tracing the ambivalent role of international law in constructing and containing ethnic nationalism. Building on Giorgio Agamben’s work, Daria Davitti, challenges the EU’s Agenda on Migration, contesting liquid, biopolitical borders and the evasion of international obligations by claiming an alleged state of exception resulting in mere humanitarian posturing of EU migration policies. Geoff Gordon reflects on the interrelationship between colonial practices, the global standardization of time, and transnational law. Read the rest of this entry…

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A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 

The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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Favourite Readings 2018: Nine Good Reads and One Viewing

Published on December 14, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. We are starting off the small series with selections from our Editor-in-Chief,  Joesph Weiler.

For the first time I have managed to prepare my Good Reads to post on EJIL:Talk! well before Christmas. I publish my pick from some of the books that have come my way during the past year. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyse or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading.

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001) 

My German readers will be shaking their head in some wonderment: Marcel Reich-Ranicki? Him again? An autobiography from 1999 of a person who died in 2013? Did he not speak enough about he, him and himself during his lifetime so as to last a few lifetimes? My non-German speakers will be shaking their heads with a different wonderment: Marcel Reich who?

But then, consider that when published this book was the no. 1 best-selling book in Germany for 52 weeks. Must be something there, no? Read the rest of this entry…