The ‘Lisbon Urteil’ and the Fast Food Culture

The outcome was not a surprise. ‘Yes’ to the Lisbon Treaty with some (arguably trivial) tinkering with internal German procedures. The naïve might have expected something else: after all, some of the statements of that same court in its highly problematic Maastricht decision could have been construed as pointing towards a different, negative, result. But in its internationally-related case law, the German Constitutional Court has a well-earned reputation of the Dog that Barks but does not Bite. There would be, as the more jaded court watchers among us confidently predicted, lengthy ‘humming and hawing;’ some high sounding and biting criticism of certain democratic deficiencies of the Union and its Institutions; heavy breathing about the German Court’s constitutional responsibilities and important guardianship role. But in what we may now call the regular ‘Karlsruhe Miracle’, the pig would finally be pronounced Kosher – as indeed turned out to be the case. Despite its history of self-important ’so long as …’ style rhetoric, of all the Member State courts and tribunals, it would not be the German Constitutional Court which would take it upon itself to derail the process of European integration in so important a case, no matter how inimical that process might be to its understanding (whether right or wrong) of democratic and civic propriety. (The dog might well bite in the pending Mangold case – and if it does the feeling of many is that it will be an injury the ECJ gratuitously brought upon itself and the Union.)

What of the content of the decision? Courts, especially supreme courts, do have institutional identities into which their transiently serving members mould themselves. But we should not overdo this form of reification. The quality of reasoning and the ostensible and implicit Weltanschauung of any given case are a reflection of the actual individuals who make up the chamber which hands down the decision. In this particular case, the composition of the deciding ‘Senate’ is as expected - some truly outstanding jurists, one or two about whose intellectual suitability for such high judicial office one might wonder, and the rest with more than adequate competence – as is the case with most of our European high courts. So no surprises here either: a mixed bag. A decision with lights and shadows, some conflicting tendencies, some painful displays of shallowness and lack of political imagination, and some veritable soaring passages and profound reflection. ^(more…)

Gaza – From Warfare to Lawfare.

For many years I taught a Seminar on the legal aspects of the Arab Israeli conflict at Harvard Law School. It was unlike any other of my courses or seminars. The participants, students and researchers, were more passionate and engaged than normal. As expected, there was always a group of passionate pro-Israelis (mostly but not exclusively Jewish). There was always a group of passionate pro-Arabs, or, at times it felt, anti-Israelis (mostly but, of course, not exclusively Jewish) Sure, they came to learn, but mostly how to sharpen the arguments for ‘their’ side in the conflict. “Lawfare” – the continuation of warfare through other means – well describes the gestalt. There were, of course, also a few  who came to learn, understand, disentangle myth from reality, sort out the facts and, normatively, seek a modicum of truth and justice in a conflict which often seems to pit right against right, and wrong against wrong. But not once did this latter group constitute a critical mass.

Law is so Janus-like: There is the advocacy face, especially in the Anglo-American tradition (in the development of which the importance of lay juries surely played a role), which passionately advocates for one side or another under  the problematic theory that adversarial arguments will lead to truth. But there is also the dispassionate face of law which privileges the disinterested, so-far-as-possible objective and clinical examination of fact and legal argument (and please, spare your breath, I, and most readers of this Journal, are all aware of indeterminacy, the conceptual and empirical problems with the notion of objectivity etc.)  There was a tug of war between these two approaches, but the first habitually crowded out the second. (more…)

In these days of easy travel and exotic holidays, children (at least of the European affluent) are often conceived in venues quite distant from their place of birth. Not only in biological life does conception precede gestation and birth. EJIL was conceived in the Fall of 1987 in, well, the Quadrangle of the Michigan Law School in a conversation between Bruno Simma and myself. Maybe it is not all that surprising. Not infrequentlydistance provides both perspective and clarity. It was time, we both agreed,that there was a European Journal of International Law . I am sure that, at least in my mind, part of the motivation was a certain rebellion at the dominance of the American Journal of International Law and dissatisfaction with the national context of the many (excellent) European international legal journals. As a life-long student of European integration I had only recently moved from Europe to the USA to take up Eric Stein’s Chair and having an EJIL seemed, well, so self-obvious it did not in fact require too much justification.

We became, shortly afterwards a Ménage à Cinq - joined as we were by Nino Cassese and Pierre-Marie Dupuy and our hard-working original Managing Editor, Renaud Dehousse. Philip Alston, an adopted EJIL child, became soon after an organic member of that original family. Gestation and birth quickly moved to Florence – where the European University Institute has provided a home to EJIL ever since.

Self-obvious or not, to launch the EJIL we had to draft a Statement of Intent (today, no doubt, it would have been called a Mission Statement). Rereading it today, as well as rereading the original Editorial which made liberal use of that Statement produces predictably ambivalent feelings and reactions. Be that as it may, publisher interest was keen and the Journal was launched to a rather sceptical world, not least the world of established national European International Law journals. 

Some of the features ‘ intended ‘ in that Statement fl ourished, others did not come to fruition and yet others shrivelled on the branch and dropped. EJIL started its life with two issues a year. It then moved to four issues and then even five. Starting with this issue, although we will maintain the overall annual number of pages printed, we will go back to four issues a year. We discovered in short order that the publication world does not like bilingual journals; we discovered, too, that our original idea of translating pieces was not only prohibitively expensive but unsatisfactory to author, translator and reader. Although French was dropped as the second language of the Journal, we have made great efforts over the years to help submissions written in English by non-native speakers. I think the results speak for themselves. We are very proud of our occasional series The European Tradition in International Law and you may expect more instalments. By contrast we have phased out most of the ‘ Services ‘ that we originally contemplated. In part, the practical difficulties of systematically maintaining surveys with a skeletal staff and unpaid Editors defeated us. But with the advent of the internet we ourselves have phased out some of these. As I have written in an earlier Editorial, the dynamics of ‘ staying current ‘ and debating recent developments have changed. It is not self-evident that the paper version of a journal is the best place to fulfil that function and maintain that conversation. I find myself increasingly writing to impatient authors: ‘ If your piece will be dated in two years, it fits uneasily the present editorial policy of EJIL. ‘

One of our most fateful decisions was not to cede ownership of the Journal to any publishing house. This, for example, enabled us to change our original publishers when we were not happy with their performance. It enables us to maintain an identity which is distinct from the large stables of publisher-owned journals. Our autonomously run website, www.ejil.org, was a pioneer in the field, and the availability free-of-charge of the entire EJIL on line, one year after publication, is another benefit of this independence. Of course, the family grows: we enjoy now a very vibrant Scientific Advisory Board whose members will, in intervals of three years, rotate through the Editorial Board. ESIL was conceived in the bosom of EJIL - a rib from its chest ( www.esil-sedi.eu) – and so of course is EJIL:Talk! our new Blog. (The recent string on events in Gaza is particularly worth a visit – sober and judicious in content and tone. see here, here, here and here )

In our very first Editorial we wrote:

Naturally, it is not the purpose of the Journal to revive a new ‘ Eurocentric ‘ tradition in international law. Whether a genuinely European approach does exist or what contours it may eventually take, remains to be seen. The Journal will not engage in any engineering in that direction. Contributions from scholars world-wide, gravitating towards the concerns of the Journal will be welcome.

I would be much less emphatic than I was 20 years ago in trying to describe, let alone define, a European approach to International Law. I suppose at that time we had to convince people about the need and utility of establishing this new Journal. I hope, even if I am a very biased ‘ parent ‘ , that by now no one regrets our Chutzpah of 20 years ago.

This is a time for celebration: We celebrate EJIL , its staff, contributors, subscribers and readers. But we are also acutely aware that we suffer from many shortcomings. We will be inviting suggestions for improvement from our readers on this blog and we will award a free subscription for one year to those whose suggestions are adopted.

EJIL at Twenty: The Anniversary Volume

 We will be marking our birthday with this special Anniversary Volume. You will, of course, have noticed the design change to our cover. A little bit like the design change to the Editorial Board – new fresh elements grafted on to the old and established … ! In each issue we will publish an ‘ Anniversary Article ‘ and an Anniversary Symposium.In conversation with the Board of Editors and Scientific Advisory Board, we decided to focus on some central themes where we think international law, and the study of international law, has seen some signifi cant changes over the last 20 years. International law and science is one such area and will feature in Issue 4, International law and globalization is another and will feature in Issue 3. If we had suggested these topics for a symposium 20 years ago, they would have seemed avant-garde. Today they are central. The symposium for Issue 2 will focus on aspects of the use of force. When EJIL was conceived we were still in the Cold War era! In this issue our symposium will examine some changing paradigms, in the law itself, in the world and in the scholarship of international law. We believe these symposia are a nice way to mark our anniversary. We also believe that every issue of EJIL is academically superb and intellectually exciting. There is, after all, a birthday every year, is there not?!

Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,¹ Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.² Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

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1. Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. [↩]
2. Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. [↩]

Editorial: Marking the Anniversary of the Universal Declaration; The Irish No and the Lisbon Treaty

Marking the Anniversary of the Universal Declaration

The interest of EJIL in, and its commitment to, the study, research and reflection on the place of fundamental human rights in the international legal system is an ontological facet of EJIL’s identity. This is not surprising given the biography and/or bibliography of its founding editors as well as, of course, that of my long-serving predecessor as Editor-in-Chief, Philip Alston. It is, thus, equally unsurprising that there has hardly been a year in which at least one or two pieces on human rights have not appeared in our pages. This engagement is carried through by the new members of our Editorial Board and Scientific Advisory Board.

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