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Roll of Honour

Published on April 1, 2014        Author: 

We wish to thank the following colleagues who generously gave their time and energy to EJIL as external reviewers in 2013. Naturally, this does list does not include the dedicated members of our Editorial Boards and our Associate Editor.

Philip Alston, Antony Anghie, Helmut Aust, Asli Bali, Lorand Bartels, Tim Buthe, Graeme Dinwoodie, Abby Deshman, George Downs, Angelina Fisher, Mónica García-Salmones Rovira, Richard Gardiner, Bryant Garth, Matthias Goldmann, Peter Goodrich, Andrew Guzman, Laurence Helfer, Robert Howse, Ian Johnstone,  Jan Klabbers, Jan Komarek, Martti Koskenniemi, David Kretzmer, Dino Kritsiotis, Nico Krisch, Jürgen Kurtz, Brian Lepard, George Letsas, David Luban, Christopher MacLeod, Lauri Mälksoo, David Malone, Carrie Menkel-Meadow, Frédéric Mégret, Tzvika Nissel, Angelika Nussberger, Sergio Puig, Donald Regan, Stephen Schill, Gregory Shaffer, Thomas Skouteris, Anna Sodersten, Alan Sykes, Michael Waibel, Steven Wheatley

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Quantitative Empirical International Legal Scholarship

Published on April 1, 2014        Author: 

Wearing my hat of Editor-in-Chief offers occasionally a better vantage point to spot trends compared to the reader of individual issues. One has the pipeline in view as well as the huge number of articles which are submitted and which we are unable to publish. One distinct trend is the increased number of articles submitted making use of quantitative data and analysis. In this issue we publish Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter’, with a Reply by Erik Voeten. In the pipeline are articles by Sergio Puig, ‘Social Capital in the Arbitration Market’ (watch out for this one – it will resonate, I am sure); Cecily Rose and Shashank Kumar, ‘A Study of Lawyers Appearing before the International Court of Justice, 1999-2012’; and Thomas Schultz and Cédric Dupont, ‘Investment Arbitration: Promoting the Rule of Law or Over-Empowering Investors? A Quantitative Empirical Study’. And these are just a few of many more that have been submitted. Time will tell whether this becomes a regular ‘thick’ part of international legal scholarship.

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EJIL Vol. 25, Issue I: In this Issue

Published on March 31, 2014        Author: 

Even aside from the joint EJIL-I•CON Symposium marking the 50th anniversary of the seminal Van Gend en Loos decision, this issue offers a cornucopia of innovative scholarship on international law. We start by introducing a new rubric, EJIL: Keynote!, under which we intend to publish especially noteworthy conference presentations and other public addresses. In the first lecture to be published under this rubric, Sir Daniel Bethlehem argues that the traditional ‘geography of statehood’ is of decreasing importance in the face of new global flows  ̶  of information, capital, goods, services, and people. Combining the new rubric with the well-established EJIL: Debate! format, David S. Koller and Carl Landauer offer two Replies that will certainly stimulate further reflections on continuity and change in the relationship between geography and international law.

The two articles that follow demonstrate, once again, EJIL’s commitment to giving equal attention to both theoretical and doctrinal aspects of international law. Maria Aristodemou’s article applies the insights and techniques of Lacanian psychoanalysis to public international law itself, appraising the latter as a thoroughly neurotic discipline; animated, challenging and droll, this piece will be required reading for anyone interested in keeping pace with the cutting edge of international legal theory. Christopher Wadlow’s article, by contrast, addresses a series of relatively specific problems arising under the TRIPS Agreement, of a conceptual and doctrinal nature. We think both are excellent in their respective genres.

Following our symposium revisiting Van Gend en Loos, Roaming Charges returns to Moments of Dignity, with a photograph of a pre-wedding moment in Peking.

In a further entry under our EJIL: Debate! rubric, we have, as mentioned,  an article by Dia Anagnostou and Alina Mungiu-Pippidi which examines the domestic implementation of rulings by the European Court of Human Rights in nine states, concluding that the main obstacles to compliance can be found in domestic policy process, legal infrastructure, and institutional capacity. Eric Voeten’s Reply engages with Anagnostou and Mungiu-Pippidi on methodological grounds, showing how the application of more sophisticated statistical methods to a more extensive data-set might produce more nuanced substantive conclusions. Together, these two pieces indeed provide compelling evidence of the growing interest in—and potential insights to be gained from—empirical, numerical and statistical studies in international law.

In our occasional series, Critical Review of International Governance, Rosa Freedman tackles the controversy over the role of the United Nations in causing the recent cholera outbreak in Haiti, exploring whether a human rights-based challenge to the UN’s immunity may be mounted.

The Last Page in this issue presents a poem entitled Bhopal, by Keith Ekiss.

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Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate)

Published on December 13, 2013        Author: 

When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment ̶ Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence.  Naulilaa represents their real deep structure.

There are many ways to explain the seeming impossibility to definitively rid the system of the Naulilaa ethos. On the one hand Naulilaa represents, as I have suggested, a clear challenge to the Charter’s focus on self-defence as the principal, perhaps only, moral justification for the legitimate use of force by individual states. At the same time, it also reflects a deep human repugnance in the face of crimes going unpunished. The unresolvable debate concerning the very appropriateness and the place of retribution (not explained away as deterrent) in theories of punishment is the domestic equivalent of this tension in international law. Read the rest of this entry…

 

House-keeping: Anonymity

Published on December 12, 2013        Author: 

Both EJIL and and EJIL: Talk! are venues for scholarly exchange where the norm is that scholars take responsibility for their submissions, use their real credentials and do not hide behind a pseudonym. In the case of EJIL: Talk! this is part of our policy of maintaining a sober, respectful and courteous tone, even in cases of critical comment. It has been our experience that anonymous comments have at times violated our ‘sobriety’ policy and have had to be removed.

On rare occasions anonymity may be justified  ̶  such as a submission from a jurisdiction which does not respect freedom of expression. An author who seeks to publish, post or comment anonymously should contact the Editor-in-Chief of EJIL or one of the Editors of EJIL: Talk! before submitting a manuscript to the Journal or a post or comment to the blog. The Editors will give due consideration to any request for anonymity.

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EJIL Vol. 24:4–In this Issue

Published on December 12, 2013        Author: 

We open this issue with two articles addressing the changing relationships between states and international organizations in contemporary international law. Andrew Guzman argues that the fear of creating a ‘Frankenstein’s monster’ explains the current overall configuration of international institutions and the distribution of activities between them. Describing the various categories of activity carried out by international organizations, Guzman concludes that the ‘Frankenstein problem’ has made states overly cautious in endowing international organizations with the powers needed to effectively tackle international issues. In an article that provides a nice complement to Guzman’s analysis, Geraldo Vidigal-Neto examines the important issue of the ability of WTO members to amend their WTO obligations through bilateral arrangements that effectively legislate regarding the interpretation of WTO law inter se, situating this phenomenon within the range of possible ways in which the content of WTO law can be altered.

This issue’s symposium on the International Law Commission’s recent Guide to Practice on Reservations to Treaties reaffirms EJIL’s commitment to the study of international legal doctrine. EJIL is as much a Law Journal as a Journal about the Law. An introduction to the symposium by Marko Milanovic and Linos-Alexander Sicilianos is followed by a ‘General Presentation’ of the Guide to Practice by the Special Rapporteur, Alain Pellet. Three additional articles, by Michael Wood, Daniel Müller, and Ineta Ziemele and Lasma Liede, explore different aspects of the Guide to Practice and reservations to treaties generally.

In Roaming Charges, we feature Places of Destruction and Rebirth, with a photograph of a remnant of the Kraków Ghetto Wall.

Two more entries in this issue under our rubric EJIL: Debate! provide occasions for the kind of spirited discussion of international legal issues that we encourage in the Journal. An article by Andrew Williams assesses the case against the European Convention on Human Rights, including the ‘heretical’ proposition that the Convention has failed human rights conceptually and should be done away with. In his Reply, Stelios Andreadakis defends the Convention and argues that the flaws identified by Andrew Williams are far from fatal. The second EJIL: Debate! in this issue continues a conversation that began with an article by Abigail Deshman in issue 22:4, on the phenomenon of horizontal review between international organizations, the Council of Europe and World Health Organization. Rosa Raffaelli argues that a number of additional reasons, not noted by Deshman, can explain the behaviour of the two parliamentary bodies in these organizations. Read the rest of this entry…

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European Parliament Elections 2014: Europe’s Fateful Choices

Published on September 27, 2013        Author: 

European_Parliament,_StrasbourgThe Status Quo

After many ‘ostrich years’ the European head is out of the sand: there really is a problem with the legitimacy – or rather, the perception of legitimacy – of the European construct. It is not a mere ‘bee in the bonnet’ of some irritating academics disconnected from reality. Eurobarometer indications are at their lowest and the results of a highly respected Pew Center survey, too, show a remarkable fall in support for Europe among its citizens. Political differences on how to tackle the Euro crisis are, worryingly, both reflective and constitutive of what one may call a solidarity deficit.

Even if the EU manages to make substantive and substantial strides in the construction of the much vaunted Banking Union after the German domestic elections in the autumn, it is not expected that any of the above will change significantly.

It used to be denied, in both political and academic circles, that Europe still suffered from a democracy deficit. The usual trope that was trotted out to defend the democratic credentials of the Union was the historic increase in the powers of the European Parliament, which even before the Lisbon Treaty could credibly be called a veritable co-legislator with the Council. But even the most devout Europhiles in the Amen Corner of the Union cannot wish away another historical trend establishing an ironic parallel with the increase in EP powers: the more powers the European Parliament, supposedly the Vox Populi, has gained, the greater popular indifference toward it seems to have developed. The decline is in voter support, not for Europe but for the European Parliament itself, as measured in voter turn-out to EP elections. The turn-out rate has declined persistently from election to election ever since the first direct elections in 1979, and reached historical lows in practically all Member States as well as for the Union as a whole at the last elections in 2009.

The failure of the European Parliament to dispel the image – real or illusory – of a gravy train with weak control over the use of resources for personal gain and a system in which lobbyists roam freely, unfairly and unaccountably impacting the legislative process, aggravates the picture. It does not explain it.

The classic historical explanation of voter indifference to a chamber without powers naturally has no longer any purchase and has disappeared. The alternative explanation usually dished out by hard-working if anguished MEPs, who are both humiliated and flummoxed by this historical trend, is to say in a million different ways that ‘we have to explain Europe better’ to European citizens. This was the initial line which the Commission also took after the debacle of the Constitution. It is a morally repugnant argument, a crass resurrection in all but name of Marxist false consciousness. Maybe we should change the stupid People who do not understand – as Brecht famously and viciously quipped?

But in fact the people are wiser than their elected representatives in the European Parliament and elsewhere. For they intuit the truth: with all its increased powers it still makes no difference to Europe, and in Europe, whether and how the people vote for the European Parliament. Read the rest of this entry…

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EJIL and ESIL

Published on September 26, 2013        Author: 

The European Society of International Law will be celebrating next year its10th anniversary. We watch it with paternal affection and care. ESIL was the brainchild of EJIL – dreamt up by Philip Alston and myself in one of our febrile Editorial meetings. Philip, as our Editor-in-Chief at the time, was the prime mover and could, I believe, be considered as the Midwife-in-Chief.

There is already a strong liaison between EJIL and ESIL – the very advantageous subscription rate to EJIL which ESIL Members enjoy. But in a series of recent meetings I have had with members of the ESIL Board we decided to look for ways to enhance – broaden and deepen – the relationship.

One decisive proposal found favour at the recent Editorial Board meeting of EJIL. We decided that the President in Office of ESIL should have an ex-officio place on the Board of Editors of EJIL. It is our pleasure to welcome Laurence Boisson de Chazournes to the EJIL Board. We are also inviting André Nollkaemper to join the Scientific Advisory Board and welcome him warmly.

ESIL has an ambitious 10th anniversary intellectual celebration in mind. We will be at their service through EJIL and EJIL: Talk!, both in the pre- and post-phases of these plans.

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EJIL Vol. 24:3 – In This Issue

Published on September 25, 2013        Author: 

This issue opens with two articles that address topics that are at once tremendously important, highly relevant to contemporary international affairs, and yet under-examined. Cai Congyan analyses the rise of New Great Powers, their impacts upon and implications for international law, and offers a unique insider’s perspective through a revealing case study of the most significant New Great Power, China. Claus Zimmermann argues for a renewed appreciation of the concept of monetary sovereignty, tracing its evolution over time and assessing its applications to present-day circumstances.

The issue continues with a pair of entries under the rubric EJIL: Debate! that are sure to provoke much scholarly discussion and disagreement for years to come. Ryan Goodman’s groundbreaking thesis regarding the power to kill or capture enemy combatants has already been the subject of intense interest and debate on a number of Internet fora. Here, we publish the definitive version of his argument, together with a Reply from Michael Schmitt of the United States Naval War College, and Goodman’s Rejoinder.

The second EJIL: Debate! in this issue centres on an article by John Dugard and John Reynolds, which assesses whether the Israeli occupation of the Palestinian territories amounts to apartheid as defined under international law. In her Reply, Yaffa Zilbershats argues that the authors fail to differentiate between the norms applicable in sovereign and occupied territories, and that they ignore the context of armed conflict that explains many of the practices they criticize. Look out for a Rejoinder from Dugard and Reynold on EJIL: Talk!, where we expect the debate will continue for some time.

In Roaming Charges, we return to Moments of Dignity with a scene from San Juan, Puerto Rico.

Our occasional series Critical Review of International Governance features a piece in this issue by Ademola Abass, on the occasion of a recent summit of African Union leaders. Abass examines the grounds for a possible decision to confer international criminal jurisdiction upon an African regional court, but argues that certain challenges to the effectiveness of such a court make it unlikely that that decision will be made.

The Last Page in this issue presents A Mystic and a Stock Price, by Laura Coyne.

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Human Rights: Member State, EU and ECHR Levels of Protection

Published on June 7, 2013        Author: 

Article 53 of the Charter of Fundamental Rights of the European Union caused, already at its inception, a hermeneutical conundrum:

Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.

Article 51, which defines the Charter’s field of application, provides:

 The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?

Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.

Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ. Read the rest of this entry…