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In this Issue

Published on September 8, 2015        Author: 

This issue of EJIL offers another rich and varied menu of first-class international law scholarship. The issue opens with an important article by Bernard Hoekman and Petros Mavroidis, who make the case for reconsidering current WTO policy on plurilateral agreements. Weighing up their pros and cons, they conclude that such agreements offer an important mechanism, as an alternative to preferential trade agreements, for subsets of WTO members to move forward on issues of common concern. The second article in the issue, by Kirsty Gover, tackles the complexities of indigenous-state relationships in western liberal settler states, presenting a compelling theoretical analysis of the relationship between constitutional rights protection in those states and their obligations under on the UN Declaration on the Rights of Indigenous Peoples. Next, Ilias Bantekas sheds light on a fascinating and under-examined aspect of international legal history: the influence of Ottoman law as a source of general principles of law in post-Ottoman territories, specifically in relation to the international law of cession. Turning from imperial history to present-day global governance, Oren Perez’s innovative and carefully researched article examines the tensions arising from the hybrid political-legal and epistemic authority exercised by transnational regulatory scientific institutions. Finally, Stefan Talmon offers an acute analysis of the International Court of Justice’s methodology for determining the existence, content and scope of the rules of customary international law that it applies. Having distinguished the circumstances in which the Court applies both inductive and various forms of deductive reasoning, Talmon argues that in fact the main methodology employed by the Court is simple assertion.

The third annual Junior Faculty Forum for International Law, held at Melbourne Law School in July 2014, once again attracted an exceptionally high calibre of scholarship, and we are delighted to publish three pieces that were originally presented at that event. In his article on internet freedom, Daniel Joyce draws on historical experience and contemporary debates to explore the argument that the internet may require human rights protection beyond freedom of expression. Ilias Plakokefalos examines the problem of over-determination in the law of state responsibility, suggesting that the growing complexity of inter-states relations necessitates a rethinking of the fundamentals of this area of law. And Guy Fiti Sinclair proposes a new analytic framework for understanding the growth of international organizations as intimately linked with the cultural processes of state formation, with both impelled by a dynamic of liberal reform that is at once internal and external to law.

Roaming Charges in this issue leaves today’s world, crossing generations and time to recall our intellectual heritage. We are publishing the title page of Hans Kelsen’s doctoral thesis, the subject of which may come as a surprise to many of our readers.

This issue sees the return of our regular series, Critical Review of International Governance, with an article by Sungjoon Cho and Thomas H. Lee on the problem of parallel adjudication of a single issue, by the same parties, but in different legal systems.

The Last Page features a poem in French by Ekaterina Yahyaoui Krivenko entitled ‘Schizophrénie du droit international’.

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On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…


The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal


The Spitzenkandidaten Exercise One Year Later – The Unsung Hero

Published on September 7, 2015        Author: 

A year has gone by since the last elections to the European Parliament. One significant innovation in those elections was the Spitzenkandidaten exercise.

At the recent fifth edition of the ‘State of the Union’ organized by the European University Institute I conducted a public interview with Vice President of the European Commission Franz Timmermans.

Vice President Timmermans and I reached the point where we touched on that perennial topic of the still existing deficiencies of European democracy, resulting, inter alia, in widespread indifference as expressed in the low turnout to the last European elections – 2014 scored the lowest turnout ever.

Here is an edited transcript from the interview.

Weiler:  […]  Part of the problem is that when people go and vote for  the European Parliament, they are not really being offered a real political choice (the way, for example, yesterday they were offered in the United Kingdom – Labour or Conservative.), neither as regards the policies that will be pursued nor as regards who will govern them. So the delicate question is whether the Union in its processes needs to become overtly more political? Do you think the bold, even though limited, experiment of the last elections to the European Parliament with the ‘Spitzenkandidaten’, who delivered here in this space [the Salone dei cinquecento of the Palazzo Vecchio] one of the televised debates, should be pursued and perhaps deepened as one of the ways of addressing that problem of citizen disengagement?

Timmermans:  Yes, first of all … the core of the problem also refers to one of my favourite authors, Hannah Arendt, who … actually, if you bring back the essence of some of her writings [says] ‘ It is not the anger of the minorities that hates us, it is the indifference of the majority that makes things difficult’: and here we have a problem at the European level because institutions that are made to represent the people through direct democracy, or like the Commission through other means, are very often very, very far removed from the political perceptions of the citizens. There is no (not yet) European ‘demos’, European political focal point, and we will need the engagement at the national level to make sure that we will bring people closer to what is European decision-making; so the odd contradiction between … there are …. there is the ‘supernational’ level and there is the national level, and what we are doing is trying to take away from one, or trying to resist taking it away from one … We are in this together! The only way forward is for national governments and leaders to take the responsibility for the European project, and stop blaming Europe for everything that goes wrong and taking credit for everything that goes right; and we at the European level should indeed, I think, be more focused towards making our institutions more political.

I was myself sceptical of the ‘Spitzenkandidaten’ idea, right?  I criticized it publicly several times and I am happy to admit it here today… I was wrong! Because of the Spitzenkandidaten idea, we now have a President of the Commission who is not appointed by consensus in the European Council, but who was appointed and elected by the European Parliament, by a political process. The European Council had to accept that political process; it makes the President of the European Commission far more independent than I have seen in the past. And Jean-Claude Juncker is a political leader who takes this very seriously indeed, and you can see this in the dynamic between the Commission and the European Parliament, between the Commission and the European Council … Let me just refer to what Jean-Claude said about migration;  this was not consensual language as far as the European Council is concerned.  He took his position in a political way; he took his leadership role in a very straightforward way and gave us a leadership role in the migration debate.

Weiler: Ladies and gentlemen, it is not every day that you sit next to a politician who is willing to say ‘I was wrong!’

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Brexit: No Happy Endings

Published on April 1, 2015        Author: 

I can think of no ‘happy ending’ scenario to this unfolding saga: like malaria, it is a malaise that has nested since British accession back in 1973, and erupts from time to time, though the current eruption is potentially of fatal proportions.

One cannot overstate the damage that a full-fledged exit of Britain will inflict on the EU. The importance goes well beyond the specificities of the functioning of the Union. It will survive and continue to function, even perhaps in some respects with less engine-room screeching. But as a global presence in the world, shaping and reshaping the impact will be huge, and to the detriment of the UK, the Union and the world. And internally, though not much might change on the surface, it will at the deepest spiritual level of European integration – and make no mistake, at its core the European construct has always been more than a functional, utilitarian enterprise – the damage will be equally shattering.

There are many in Britain who are sceptical about the benefits of British membership. But if Brexit results from a referendum vote, it is quite likely that it will be an English exit majority, with the opposite outcome in Scotland – almost inevitably leading to a Scottish exit from the UK, a catastrophic result by all accounts for the UK.

This MAD-like scenario assures at least one thing – that there will be no facile poker-playing in any future negotiations, the stakes are simply too high.

Allowing Scotland a referendum on its status within the UK was, in my eyes, the best of the British mature democratic tradition. Many express doubts whether the decision (for what it is) to allow a referendum for continued EU membership would justify such accolades. It was, according to some, holding the country hostage to the internal politics of the Tories. I don’t share this view. The fact that the EU issue has remained for so long – forever – a potent part of UK politics, together with the recent impressive successes of UKIP, means, in my opinion, that at some point the people should be able to express themselves, on such a critical ontological issue, directly. Be that as it may, a referendum was promised and to withdraw it at this point would undermine even further the fortunes of the Union in the UK and would be grist to the mill of the most populist of voices. Read the rest of this entry…

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25 Years of EJIL – A Retrospective

Published on March 31, 2015        Author: 

When planning first began to launch a journal of international law with a specifically European orientation the Berlin Wall was still standing. EJIL was born in a time of intense change – the first issue was published in 1990, the year of German reunification – and, indeed, the life of the Journal tracks our post-Cold War world. Twenty-five years later we celebrate EJIL’s birthday with a Retrospective – an exhibition in which visitors can glimpse not only the evolution of the Journal and the discipline but also in many respects the last quarter century in the life of international affairs and international law.

The exhibition, available on the EJIL and OUP websites, includes a main feature and some special exhibits. We selected, chronologically, year by year, two or more articles to represent each volume. Like curators of an exhibition we combed the EJIL archive, at times marvelling at the rich choice of articles and at times anguishing over the difficult and ultimately subjective selection. We tried to choose articles that would give a flavour of the world in which they were written, the diversity of scholarly approaches which has been a hallmark of EJIL since its inception and, plain and simply, a ‘good read’ even in some cases after many years.

A number of special exhibits complete the Retrospective. The EJIL Tables of Contents have been aggregated into one chronological file, providing a fascinating account of the evolving field of international law and its community of scholars. EJIL has always had an eye for young talent and readers may well recognize some of today’s most respected scholars in their more youthful productions. The Editorials, too, have been collated into a single file, reflecting different styles and sensibilities of our various editors. Our Book Review Editor, Isabel Feichtner, selected 25 book reviews, one for each year, memorable for the book or for the review, to create another special exhibit. Finally, the Roaming Charges photos and the Last Page poems have been collated into special exhibits.

We hope you will enjoy the Retrospective and join us in a toast to another 25 years of academic excellence and innovation in EJIL.

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In this Issue

Published on March 30, 2015        Author: 

This issue opens with the first entry under our new, annual rubric, The EJIL Foreword. Taking the ongoing debate concerning the United Nations’ role in the Haitian cholera tragedy as his starting point, Jan Klabbers presents a masterly tour d’horizon of the intellectual origins, current state, and future prospects of the law of international organizations. In the process, he reconstructs – and exposes the blind spots and biases – of a functionalist theory that he identifies as specific to and underlying that law.

In the next article in the issue, Janina Dill presents a novel framework for understanding the different set of demands made on states in war. Identifying ‘three logics of waging war’ – associated respectively with international humanitarian law, military strategy, and an individual rights-based morality – she concludes that the three cannot be reconciled, presenting war-making states with an irresolvable ‘trilemma’. On a related topic, but adopting a very different approach, Amanda Alexander presents a new and revisionist history of international humanitarian law, locating its origins in the work of a particular set of actors from the 1970s onwards. Bart Smit Duijzentkunst and Sophia Dawkins, draw from relational contract theory to construct an innovative model of arbitration in peace processes, and demonstrate the value of that theory and model through a set of carefully presented case studies. And Ulf Linderfalk’s short article on the perennially relevant topic of treaty interpretation adduces a series of well-chosen examples to elucidate the relationship between the aims and means of interpretation.

In Roaming Charges, the ‘Moment of Dignity’ is  a photograph that celebrates the small traditions we risk losing in our fast-moving world. The photographer is Martin Lestra, PhD researcher at the European University Institute. We remind our readers that submissions to Roaming Charges are welcome.

The articles section of this issue is rounded out by the return of two of our regular rubrics, EJIL: Debate! and Critical Review of International Jurisprudence, both addressing topics relating to the European Court of Human Rights. Under the first, we present Stéphanie Hennette Vauchez’s somewhat provocative article on the issue of gender balance within the Court, assessing the politics of the appointment process through a detailed analysis of the self-presentation by the 120 or so women who have applied for positions on the Court. We publish Replies by Françoise Tulkens and Fionnuala Ní Aoláin, both of whom have direct, personal experience of that process. Finally, Paolo Lobba surveys the development of the Court’s jurisprudence on Holocaust denial, which he argues has important implications for ‘denialism’ in relation to other core international crimes.
The Last Page, offering nourishment for the soul as well as the mind, presents a poem by Dimitri Van den Meerssche entitled ‘Calling Themis’.

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Vital Statistics

Published on March 30, 2015        Author: 

Here are our ‘vital stats’ for 2014. Each year we track trends in the submission and publication of unsolicited manuscripts according to criteria of gender, place of submission and language. Note that there are no special requirements for authors wishing to submit to EJIL (you don’t have to hold a PhD or have a tenured position or write with impeccable Oxford English) nor is there any editorial affirmative action in selecting manuscripts for publication. Our double-blind review process guards against that. So the statistics we present speak plainly about the submissions we receive and the manuscripts accepted for publication.

Having seen a rise in the percentage of manuscripts submitted and published by women authors in the previous two years, the figures stabilized in 2014 at 35 per cent both for submissions and accepted articles. The figure was 28 per cent for published articles (recall that published articles largely reflect submissions of the previous year). For now I regard this as a blip – I doubt it signals a trend.

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 statistic might 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. Of the total number of manuscripts submitted in 2014, 43 per cent came from the EU, 8 per cent from CoE countries, 25 per cent from the US and Canada and 24 per cent from the rest of the world; very similar figures to those of the previous year. For accepted and published articles, the EU took a slightly larger share of the cake, with 58 and 59 per cent of the total, respectively, whilst CoE countries claimed 5 per cent of accepted articles and a larger 15 per cent of those published. For the US and Canada, the figures were 16 per cent for accepted articles and 20 per cent for those published, whereas the rest of the world took 21 per cent of accepted articles and only 6 per cent of published articles. The 2015 ‘published’ figures will reflect the higher rate of acceptances from the rest of the world in 2014.  Read the rest of this entry…

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ICON·S Conference; EJIL on your iPad!!!

Published on March 28, 2015        Author: 

ICON·S Conference  

The second conference of the International Society of Public Law (ICON·S), around the theme of ‘Public Law in an Uncertain World’, will be held in New York, at the New York University School of Law, on 1 – 3 July, 2015. The Call for Papers and Panels is open until 10 April 2015 and more information is available on the ICON·S website.

EJIL on your iPad!!!

We have ‘gambled’ and invested considerable resources, human and material, in developing a tablet version of EJIL. We believe a tablet version represents a perfect adaptation of one of our most important identity markers to the digital age and current reading habits.

The identity marker has two facets. The first is our huge commitment to a Journal which is not only edited but ‘curated’. For each issue we pay attention not only to the individual articles but to the ensemble. We try to make, in each and every issue, the whole greater than the sum of the parts, with careful, even loving, attention given to the construction of an interesting, rich and satisfying whole. Not just something of interest to different tastes and constituencies, but a more holistic concept of what a good journal issue should be and feel like. I have habitually extolled (and cajoled) our readers to actually pick up the hard copy of EJIL to enjoy the ‘book feel’ of each issue.

The second facet is our long-standing commitment to the aesthetics of publication. It is based on the premise that beauty is an integral part of the world of the mind. A well-written article, for example, has a beauty that stands independently of the content as well as enhancing such. We all spend a huge amount of time and effort on our research and writing, and EJIL believes that the result deserves a presentation that does justice to such effort. A beautiful painting deserves a beautiful frame. If you look at the paper version of EJIL you cannot fail to notice this commitment reflected in seemingly trivial details such as the quality of paper and print. OUP has been our wonderful partner in crime in trying to achieve this.

We are, however, aware that for many the paper version is at best a (beautiful) doorstop. Hence the tablet version of EJIL – capturing both the holistic and ‘wholistic’ sense of each issue as well as its aesthetic qualities.

A tablet version is quite different to ‘going online’. The entire issue downloads onto your tablet. You can then browse and read at leisure away from your desk. If you are like me, it is likely to be on some long flight. You can leaf through the issue or click a title in the ToC and skip to it.

To be clear, the tablet version will not replace the online access that subscribers are entitled to on the OUP platform or the free access to the EJIL archives (except for the current year) on the site. Rather, it will offer a new and different reading dimension.

We gambled that the tablet version will be a huge success with many of our existing subscribers and will encourage many other readers to become individual subscribers.  Make no mistake: this initiative is not driven in any way by economic considerations. The individual subscription to EJIL is among the lowest in the field, if not the lowest, and has been kept constant for years. It is practically an at-cost price. You will also note that the difference between the individual subscription rate and the cost of membership in the European Society of International Law (ESIL) is negligible. All members of the Society are offered a subscription to EJIL. So my recommendation would be to use this occasion to become a member of ESIL and enjoy all membership benefits as well as a subscription to EJIL, including access to the new tablet version!

The app will launch with this issue of the Journal. In a first phase it will be available only for Apple devices. An Android version will follow shortly.  Access to content through the app will be limited to individual subscribers and ESIL members. Subscribers should visit and enter their OUP customer ID number for authentication, then simply follow the links from that page to install the app to their device. New subscribers will receive full instructions from OUP.

For those attending the ASIL meeting in April, visit the OUP stand. There will be free access to the EJIL app in the vicinity.

 Finally, although we tested a beta version for several months there are bound to be some teething problems (please be patient) and ways to improve the tablet version. Do not hesitate to write to us.

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The EJIL Annual Foreword

Published on March 27, 2015        Author: 

Starting with the present issue, we will be publishing The EJIL Foreword in the first issue of each year.

The idea, and the title, are unashamedly ‘borrowed’ (we did not ask them) from the famous Harvard Law Review Foreword. We will be inviting each year a ‘distinguished’ scholar in the field – distinguished not simply by an illustrious career, but also by having, we believe, something interesting to say – to present a ‘state of the field’ type article, permitting on an annual basis a regular ‘deep breath’ reflection on international law with a horizontal appeal to many readers.

A higher word limit, in the range of 40,000 words, will permit, we trust and hope, a more extensive analysis, synthesis, conceptualization, or systemic theorization than is usually possible in an EJIL article. Considerable licence will be given to each author to define the topic of his or her Foreword, but in principle it will be expected to:

  • define an original vision of the field, and/or
  • reflect on the state of the discipline as a whole (or a particularly pressing challenge facing it)

in light of recent events and developments in practice.

The inaugural Foreword, by Jan Klabbers, published in this issue captures, in its ambition, breadth and depth, precisely the type of piece we have in mind. We also invite readers to watch the extensive EJIL Live! conversation with Professor Klabbers concerning his Foreword.

The celebrated Hague General Courses serve in some ways a similar function to The EJIL Foreword, but both the format and size of a General Course of International Law are quite different.  Our own ambition and hope is that the Foreword will establish itself in its own way as a kind of ‘cousin’ of the General Course, an important ‘event’ on the IL intellectual calendar, and that over time the accumulation of EJIL Forewords will constitute a repository of profound reflection on international law itself and of self-reflection on the academic discipline of international law.

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