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EJIL: In this Issue (Vol. 27 (2016) No. 2)

Published on July 26, 2016        Author: 

This issue opens with a pair of articles that address questions of normative coherence and contestation in two central areas of international law. In the first article, Monica Hakimi and Jacob Katz Cogan address the presence of a puzzling incoherence in the legal regime relating to the use of force. Their article theorizes that this incoherence derives from the combination within the regime of two distinct ‘codes’, thus offering a useful framework for thinking through interpretive debates in the field. In our second article, Karen Alter, James Gathii and Laurence Helfer offer an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent. Their article usefully highlights the work of courts that may remain unfamiliar to many of our readers, while casting new light on a range of theoretical debates relating to international courts. Our EJIL: Live! interview with Karen Alter deepens the discussion.

The next three articles likewise address important questions of normative authority in international law. Nicole Roughan argues that international law’s claims to authority should be understood as claims to relative authority, dependent upon the relationships and interactions with other institutions. Elisa Morgera offers some conceptual clarity in the little-investigated notion of fair and equitable benefit-sharing, identifying shared normative elements from different regimes to help develop a common core to this concept. Finally, David McGrogan provides an incisive analytical framework for understanding both the growth of the culture of human rights indicators and its unintended consequences, showcasing the competing priorities of certainty and uniformity on the one hand, and experiential and conversational approaches on the other.

Our occasional series on The European Tradition in International Law returns in this issue, featuring a remarkably rich and varied collection dedicated to the controversial 19th-century Scottish jurist, James Lorimer. The collection opens with a short overview by Stephen Tierney and Neil Walker, highlighting the tension between Lorimer’s remarkable foresight in relation to a number of developments in international law, cast against his deeply embedded racial prejudice. This darker side of Lorimer’s legal science is examined further by Martti Koskenniemi, whose article considers the importance of racial hierarchies that underpinned Lorimer’s conception of statehood. Gerry Simpson traces the legacies of these attitudes in international law, including the extension of Lorimer’s hierarchies in legally codified power. Karen Knop likewise explores the continuing resonances of Lorimer’s thought in the present day, focusing in particular on his notion of ‘private citizens of the world’. Stephen Neff discusses Lorimer’s views on war and neutrality, highlighting the remarkable modernity of his approach in seeking a systematic global regulatory framework.

Roaming Charges in this issue features a photograph of pupils at the Jean Paul II High School, Kibera, Nairobi.

In the last article in this issue, appearing in our regular series Critical Review of International Jurisprudence, Katie Sykes explores the use of science in the emerging field of ‘global animal law’, through an analysis of two recent and important international legal decisions, the first by the Appellate Body of the World Trade Organization in the EC–Seal Products dispute, and the second by the International Court of Justice in Whaling in the Antarctic.

The Last Page in this issue, entitled ‘Reasons’, is by Liam McHugh-Russell.

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EJIL on Your Tablet or Smartphone

Published on July 26, 2016        Author: 

ESIL members will know that, following the decision taken at the 2015 General Assembly meeting, membership of the Society now includes an online subscription to EJIL and access to the EJIL app. The app, available for both Apple and Android systems, allows you to download and read the Journal on your mobile device – anywhere and at any time.

ESIL members can access the EJIL app in just a few, simple steps:

  1. Shortly after joining ESIL, you will receive an OUP customer ID number
  2. Go to exacteditions.com/print/ejil and enter that number plus your email address and choice of password
  3. The site will authenticate you as a user
  4. Go to the appropriate App Store (Apple or Android) and download the EJIL app
  5. When you reach the login page enter your registered email address and password

For ESIL members who wish to receive the print edition, a special reduced price subscription is available.

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Ten Good Reads (Vol. 27: 1)

Published on April 25, 2016        Author: 

By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom,  I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy!

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)

A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court.  Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say,  Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement.

Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini,  Italian Constitutional Justice in Global Context (Oxford University Press, 2015)

This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more.

Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015) Read the rest of this entry…

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Vital Statistics, EJIL’s Assistant Editors, and With Gratitude- Shirley Wayne (Vol. 27: 1)

Published on April 22, 2016        Author: 

Vital Statistics

As EJIL readers will know, we publish statistics each year on the submissions received, accepted and published in the Journal during the previous 12 months. We call them ‘Vital Statistics’ because we believe that it is vitally important to observe and understand trends in the submission and publication of articles in our Journal: Who is writing, where are manuscripts coming from, which languages do our authors speak, can we detect any changes in submission trends? We present our statistics with no frills, letting them speak for themselves.

There are no special requirements for authors wishing to submit to EJIL. We encourage the new, the innovative, the young and the well-established to submit to EJIL, but there is no editorial affirmative action in selecting manuscripts for publication. Our double-blind review process makes certain of that. Of course, EJIL does commission some articles, and readers will find statistics on the incidence of unsolicited and commissioned articles in our pages here as well.

We have seen a very gradual rise in the percentage of manuscripts submitted and published by women authors in recent years, with the figures now showing that 37 per cent of submissions and published articles for 2015 were by women authors. The number dropped slightly to 31 per cent for accepted articles.

We divide the world into four regions for our statistical purposes: the European Union, the Council of Europe countries outside the EU, the US and Canada, and the rest of the world. This may seem a little misleading as it indicates the place of submission – normally the institution at which authors work or study, rather than their actual nationality – but overall we believe it conveys a fairly reliable picture of our authors and EJIL’s presence in the world. Of the total number of manuscripts submitted in 2015, 44 per cent came from the EU, 8 per cent from CoE countries, 19 per cent from the US and Canada and 29 per cent from the rest of the world; thus, very similar figures to those of the previous year for the first two groups, whilst US and Canadian submissions showed a decline and rest of the world submissions increased. These percentages are closely reflected in the figures for published articles. Only 8 per cent of this year’s authors hail from the US and Canada, though the percentage of accepted articles by North Americans was much higher at 31 per cent. Thus, next year’s statistics may speak differently in this respect. Read the rest of this entry…

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EJIL Foreword and In this Issue (Vol. 27: 1)

Published on April 21, 2016        Author: 

The EJIL Foreword

This issue opens with the second entry under our new annual rubric, The EJIL Foreword. As I explained a year ago, the Foreword is designed to enable a distinguished scholar in our discipline to undertake a sweeping view of the field, a more extensive analysis, synthesis, conceptualization, or systemic theorization than is usually possible in an EJIL article. It is fitting, then, that Robert Howse’s contribution in this issue surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. Howse presents a fresh and fascinating account of this seemingly well-known story, unearthing new insights and creating a new standard point of reference for studies of the WTO Appellate Body. An EJIL: Live interview with Professor Howse, available on our website complements the article.

In this Issue

The Foreword by Robert Howse is followed by four articles. In the first, Charles Leben presents a rich and original historical analysis of the influence of Hebrew sources on the development of international law in early modern Europe. In the second, Andreas Kulick explores the inconsistent use of estoppel in international investment arbitration and the lack of reasoning used to justify the different approaches taken, leading him to conclude that the ‘cart may have come before the horse’ in many of the decisions surveyed. Yoshiko Naiki examines the important but understudied area of international regulatory arrangements around biofuels, in the process making an important contribution towards understanding the functioning of a fragmented governance system with multiple coexisting regimes. Finally, Timothy Meyer adopts a rational choice approach to explain the choice of soft law over binding law forms of agreement, with particular reference to the context of uncertainty and shifting power dynamics in which such decisions are made.

In Roaming Charges, this issue features a photograph by Michael Klode, entitled Halls of Justice: At the African Court on Human and People’s Rights in Arusha, Tanzania.

The last article in this issue appears under our regular rubric, Critical Review of International Jurisprudence: in yet another example of the growing ‘empirical turn’ in international legal studies, Manley Stewart examines referencing patterns at the International Criminal Court.

We end the issue on a light, yet astute, note with The Last Page.  Niccolò Ridi and Sondre Torp Helmersen offer us Public International Limericks and by way of a teaser:

The Function of Law in the International Community

The place of international law and its sources

Is not just in books and university courses

It can actually mute

A protracted dispute

The views expressed here are personal to the Editor-in-Chief and do not reflect the official position of either the European Journal of International Law or the European University Institute.

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In this Issue

Published on February 19, 2016        Author: 

This issue opens with an article that is sure to provoke discussion and perhaps disagreement. Yishai Beer argues that the principle of necessity should be understood as constraining military action, particularly when infused with the standards of a modern professional military. We continue with three articles focusing on the European Court of Human Rights. In the first, Helen Keller and Cedric Marti propose a novel framework for understanding – and further enhancing – the more assertive stance of the Court, during various phases of its work, in ensuring the implementation of its judgments. The next article, by Anna Dolidze (who was recently appointed the Deputy Minister of Defence of Georgia), examines the Court’s borrowing of the amicus curiae participation procedure from the UK, and offers a theory of the conditions under which such internationalized legal transplants may take place. The third article, by Mathias Möschel and Ruth Rubio-Marín, considers how the Court’s jurisprudence has been distorted by what they call the ‘Holocaust Prism’, through which the Court views and responds to cases involving racial discrimination. Rounding out the main Articles section in this issue is a piece by An Hertogen, which argues that the well-known ‘Lotus principle’ reflects a misreading of the majority opinion in that landmark case, and should be re-cast in a manner that is more compatible with contemporary needs.

The first entry under our new rubric, For the Classroom, is an article by John Morss on the claims to statehood under international law of the Vatican/Holy See. In For the Classroom we select articles on discrete classical areas of International Law whose subject matter, comprehensiveness and quality make them particularly suitable for teaching purposes. Read the rest of this entry…

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Roll of Honour

Published on February 18, 2016        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 2015.

Philip Alston, Alberto Alvarez-Jimenez, Dia Anagnostou, Stelios Andreadakis, Helmut Aust, Lorand Bartels, Arnulf Becker Lorca, Gary Beckman, Andrea Bianchi, Tomer Broude, Congyan Cai, Iris Canor, Patrick Capps, James Cavallaro, Damian Chalmers, B. S. Chimni, Ioana Cismas, Matthew Craven, Luigi Crema, Robert Cryer, Sophia Dawkins, Gráinne de Búrca, Janina Dill, Jeffrey Dunoff, Angelina Fisher, Caroline Foster, Michelle Foster, Rosa Freedman, Mónica García-Salmones Rovira, Geoff Gilbert, Guy Goodwin-Gill, Monica Hakimi, Gerd Hankel, Laurence Helfer, Kevin Heller, Florian Hoffmann, Yann Kerbrat, Jan Komárek, Dino Kritsiotis, Andreas Kulick, Jürgen Kurtz, Isabelle Ley, Paolo Lobba, Benoît Mayer, Christopher McCrudden, Frédéric Mégret, Sonia Morano-Foadi, Martins Paparinskis, Joost Pauwelyn, Jacqueline Peel, Niels Petersen, William Phelan, Eric Posner, Heather Roff, Cecily Rose, Arie Rosen, Cedric Ryngaert, Margaret Satterthwaite, Martin Scheinin, Bas Schotel, Yuval Shany, Henry Shue, Gerry Simpson, Bart Smit Duijzentkunst, Gila Stopler, Stefan Talmon, Christian Tomuschat, Anna Triandafyllidou, Nicholas Tsagourias, David Victor, Jochen von Bernstorff, Wouter Werner, Ramses Wessel, Andrew Williams, Reinmar Wolff.

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On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap

Published on February 18, 2016        Author: 

Do you ever have the feeling that simply too much is getting published these days? That one simply cannot keep up with it all, that things would be a lot better if less were published, not least because then there would be a greater chance that what we ourselves publish, never too much of that, of course, would get noticed?

Technology has certainly increased academic productivity, as it has increased productivity elsewhere. It is easier to do research (so long as the sources are digitized and searchable), to write, to cite, and to publish. The number of legal journals has exploded, increasingly in online form, driven at least in part by the lower entry barriers, set up and distribution costs for publishers as well as the scandalous profits they make from journal publication. And then, of course, there is self-publishing. In the world of literature, when an author self-publishes it is called vanity publishing; in academia it is called SSRN. I say this tongue in cheek, of course, but grant me it is something of a mixed blessing. Democratization of publishing has increased (good); discernment has diminished (less good).

Not surprisingly, everybody is so busy writing these days, publishing, self-publishing and then self-promoting (attaching links to one’s own recent publications at the end of every email has become more the norm than exception) that hardly any time is left for reading. By this I mean serious, reflective reading and not simply picking up a few citations to put in what I happen to be writing, which, if lucky (very lucky), will be read by others in the same cursory manner. But then who cares as long as my piece ends up being similarly cited?

I read. A lot more than I write, and not only because I have aged and have, even in my own eyes, less interesting things to say and certainly less time to do research. Read the rest of this entry…

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In this Issue

Published on November 6, 2015        Author: 

This issue opens with a brace of articles on topics relating to the treatment of alternative dispute resolution in international institutional settings, albeit from quite different perspectives. Jaime Tijmes introduces the possibility of using final offer arbitration to settle disputes in the World Trade Organization, and explores how it might best be introduced. In contrast, Lorna McGregor uses the jurisprudence of the European Court of Human Rights to consider the kinds of tests that supranational bodies should and do use to determine the compatibility of a particular dispute resolution process with the right of access to justice.

In Roaming Charges, we feature a photograph by Janet McKnight of Places of Impasse: Scars on Beirut Structures That Refuse to Fall. We encourage our readers to submit photographs for publication to ejil {at} eui(.)eu.

The issue continues with two entries under our regular rubric, EJIL: Debate!. In the first, Catharine Titi argues that the European Union is in the process of introducing a new model of investment treaty that is ‘set to change the face of international investment law as we know it’, while in his Reply Martins Paparinskis introduces a note of caution regarding methodology, as well as a note of scepticism regarding Titi’s conclusions. The second EJIL: Debate! in this issue opens with an article by Devon Whittle, which applies Oren Gross’ ‘extra-legal measures model’ to conceptualize the UN Security Council’s Chapter VII powers as a form of emergency powers. In his Reply, Gross expands upon Whittle’s proposal to consider the application of the same model to another issue in international relations, namely unilateral humanitarian intervention. We invite comment on both debates on our blog, EJIL: Talk! Read the rest of this entry…

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The EJIL App (again)

Published on November 5, 2015        Author: 

I want to remind all our individual subscribers – for example all members of ESIL – of the possibility of installing the EJIL App and downloading EJIL to your tablet (both Apple and Android devices).

In a random survey we discovered that a large number of our subscribers, even those receiving the hard copy of EJIL, mostly access the Journal in its digital version online. The App offers two major advantages. The whole issue downloads to your tablet and you can then access it whether online or not. (Maybe I spend too many hours on airplanes and overrate this advantage.) The other advantage is that one clearly gets a much better sense of the issue as a whole, with the ability to browse through and skim even those articles you are not going to read in depth. An issue of EJIL is not a collection of articles simply waiting their time in the queue to get published. We curate each issue with care, like the construction of a satisfying meal with different courses. One also gets a better sense of our huge investment in the aesthetics and form of the Journal.

It is worth a try. Here, again, are the technical details:

  1. Make sure you have your OUP customer ID number. Contact our Managing Editor if you do not have one.
  2. Register at exacteditions.com/print/ejil. You will be asked to enter your customer ID number, register your email address and create a password.
  3. The site will authenticate you as a user. You can then download the app from the appropriate App Store and enter your registered email address and password at the login page.

If you experience any problems do not hesitate to email our Managing Editor, Anny Bremner, at ejil {at} eui(.)eu.

Filed under: EJIL Analysis