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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…

Filed under: Editorials, EJIL, European Union


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…


P.S. Catalonia

Published on June 6, 2013        Author: 

My Editorial on Catalan independence certainly put the cat among the pigeons – or perhaps more accurately, the pigeon (or dove) among the cats.  Reactions were ferocious and some unpleasantly ad hominem, even by some authors who should know better. I read with care all reactions, including those removed by our Blogmasters for violating the decorum and sobriety which are a hallmark of EJIL: Talk! Most underscored, with different levels of vehemence, the longevity and authenticity of Catalan nationalism – something that was not called into doubt – and a variety of historical grievances.  None, in my view, came even close to meeting my basic point, which was that to insist on independence as a solution to resolving the grievances and vindicating Catalan national identity, was a defeat of the very spirit and ethos which gave birth to that noble experiment which is the European Union. I repeat: Independence? Bon Voyage. But not in the EU.

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Why Does it Take So Long for my Article to Be Published?

Published on June 5, 2013        Author: 

I have asked the Managing Editor to provide me with the statistics for the length of time it takes from submission to publication in EJIL. Here are the figures. The average time in review for manuscripts accepted without revision is 2.8 months and for those requiring revision the review period extends to seven months. These are averages; times range from one to 12 months. The average time from acceptance to publication is 6.5 months, ranging from two to 13 months. Thus, a fortunate author – whose article is punctually reviewed and accepted without the need for revision – may travel the path from submission to publication in, say, six months. But more commonly, the review process, particularly if revision is involved, followed by the queue to publication, means that authors will not see their article in print until well over a year after the initial submission.

There are two principal bottlenecks in the process: peer review remains one. For a recent article we wrote to eight peer reviewers before receiving a positive response! And one peer reviewer took 108 days before we finally obtained the report, albeit an excellent one. We now give a one-year digital subscription to our peer reviewers as compensation for their efforts and in the hope of expediting the procedure.

The second bottleneck is our pipeline. By the time an article is accepted for publication it will normally have to wait at least two and sometimes three issues before a slot becomes available. OUP is efficient in processing the copy we give them – typically it is them waiting for us! But that should not give the impression that we sit around twiddling our toes and flying kites with your submissions.

This, however, would be a good occasion to remind our authors and readers of our basic philosophy of journal publishing in the age of the internet, blogs, Facebook, and the like. We expect the instant note and comment on recent developments to take place on EJIL: Talk! In EJIL we aim to publish pieces which in our view have some lasting value – our rule of thumb is an expected shelf life of at least five years. I have, more than once, found myself writing such to an impatient author: ‘Maybe we made a mistake in accepting your piece, if it will, as you seem to suggest, lose its relevance if not published immediately.’  If someone is in the process of tenure review or the like, I would be happy to write to the relevant committees to attest that publication in EJIL is pending.

Filed under: Editorials, EJIL
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EJIL Vol. 24:2 – In This Issue

Published on June 4, 2013        Author: 

We open this issue with three articles showcasing the variety of high-quality international law scholarship that finds a welcome home in EJIL. Christopher McCrudden and Brendan O’Leary examine the recent decision of the European Court of Human Rights in Sejdić and Finci, exploring the difficult issues that arise where consociational or power-sharing arrangements, implemented to secure peaceful constitutional settlements in divided societies, are seen to conflict with the deep-seated norms and values of international human rights institutions. Boris Rigod analyses the purpose of the SPS Agreement in light of its negotiating history and economic theory; if properly applied, he concludes, it will neither undermine democratic self-government nor lead to a ‘post-discriminatory’ world trade regime. Anne Peters offers further reflections on Nino Cassesse’s last book, defending a ‘critical’ or ‘ideational’ positivist approach to international legal scholarship.

This issue sees the launch of what we hope will become a regular EJIL feature in succeeding years: a selection of papers from the Annual Junior Faculty Forum for International Law. A short essay by the Faculty Forum convenors – Dino Kritsiotis, Anne Orford and myself – describes the organization and goals of the inaugural Forum, and introduces the three exceptional papers selected for publication in this issue. Christopher Warren’s contribution delves into the work of 17th-century English republican poet John Milton, delineating his vision of the law of nations and shedding new light on the humanist tradition in international law. Evan Criddle’s article identifies and analyses the mechanism of ‘humanitarian financial intervention’, surveying the range of possible purposes to which it can be directed and the variety of international regimes that determine its legality. And Martins Paparinskis advances our understanding of the law of state responsibility by exploring how it applies in the context of investment treaty arbitration, where the participation of non-state actors has the effect of producing some surprising variations.

Our occasional series Critical Review of International Jurisprudence returns in this issue with a piece by Aldo Zammit Borda, who takes a formal approach to Article 38(1)(d) of the Statute of the International Court of Justice   ̶ regarding the application of ‘judicial decisions and the teachings of the most highly qualified publicists’   ̶  and distils an original interpretation of that provision from the judgments of international criminal courts and tribunals.

Roaming Charges shifts back from Moments of Dignity to Places, with ‘Backviews’ of two great international cities, New York and Singapore.

In this issue’s EJIL: Debate! Emmanuelle Tourme-Jouannet introduces and outlines what she affirms is an emergent new branch of international law, the ‘international law of recognition’. In his reply, Jean d’Aspremont focuses on the ‘methodological and functional anthropomorphism’ underlying Tourme-Jouannet’s project, which he argues acts to destabilize it.

The Last Page presents a poem on a theme with unfortunate resonance in our times: Ballade of Schadenfreude, by Susan McLean.

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EJIL and EJIL:Talk!

Published on April 6, 2013        Author: 

On a regular basis I am asked about the relationship between EJIL and its (very successful) blog, EJIL: Talk! There is a substantive dimension to the question and a procedural-management dimension which I will address in turn.

EJIL and EJIL: Talk! The Substantive Relationship. The internet has changed scholarship in profound ways, mostly positive, some negative, and has also changed the function and identity of scholarly journals. I recall the days when at EJIL we would scurry around to find someone who would write a quick comment, to appear in the next issue when, say, the ICJ or Appellate Body of the WTO (yes, EJIL never considered international economic law as a stepson) handed down a decision. Today, by the time the next issue appears, there will be endless commentary on the net and, in all likelihood, a few SSRN papers as well. In some ways, this has been liberating, since it has enabled EJIL to focus on the deeper and longer lasting contributions  ̶ the standard yardstick we apply to any submission in this regard is: Will this be interesting, so far as we can tell, in five years from now? Anything less than that we consider ephemera. We do not publish case notes as such or ‘recent developments’, but we are very happy with our occasional series, ‘Critical Review of International Jurisprudence’ and ‘Critical Review of International Governance’, which usually take the form of a review of a line of cases or of a certain international legal praxis, with a view not only of informing, but also conceptualizing and evaluating. We believe these contributions also have lasting value.

The push to establish EJIL: Talk! came from our conviction that the authors and readers of EJIL are among the most qualified to offer reflection and commentary on a more immediate and ongoing basis  ̶  a commentary which had been squeezed out of EJIL as explained above. Blogging seemed a promising avenue. We surveyed the blogosphere and drew some conclusions as to the identity of EJIL: Talk! It would be semi-moderated, meaning that a first posting would have to be approved by the blog masters, who would also reserve the right to remove or suggest amendments to inappropriate postings. We would not practise content censorship except in extreme situations  ̶  verified libel or opinions universally accepted as beyond the pale, such as holocaust denial and the like. But we would be quite severe as to the tone of EJIL: Talk!, insisting that all submissions and comments (!) be sober in tone and, even when in serious disagreement with an interlocutor, respectful in idiom. When it comes to content itself we welcome the radical and innovative  ̶  there have been some spectacular postings of this nature. When it comes to manner of expression we prefer to err on the side of stodginess. We have seen too many blogs descend into shouting matches and worse. On one or two occasions I think we have come close to the line, e.g. some of the commentary following our Armenia Genocide exchange (see here and here). I have asked the blog masters to be vigilant.

I consider EJIL: Talk! to be very successful by a number of yardsticks. Read the rest of this entry…

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The Strange Case of Dr. Ivana Radačić

Published on April 5, 2013        Author: 

I have never met Dr. Radačić, but we have published a piece by her in EJIL. Her career has hit a road block for reasons which, I believe, are of interest to the definition, scope and place of international legal scholarship within the academy and to the processes with which careers are made or unmade.

In Croatia, apparently the first step in an academic career is to obtain the title of Research Associate/Lecturer, the qualification for which are, inter alia, having a Ph.D and the publication of at least six scholarly articles.

Now comes the rub: one has to be a Research Associate/Lecturer in a specific branch of law which corresponds to the departmental divisions within the overall faculties – in our case the faculties of law. Getting this title in Croatia involves a two-stage process: a positive assessment by a law faculty, which is then sent for approval (or otherwise) to the National Committee of Law.

Here is a sample of titles in English which form part of Dr. Radačić’s corpus of work. Most of them can be found on the web:

•        Gender Equality Jurisprudence of the ECHR  ̶ which we published in EJIL

•        The European Court Approach to Sex Discrimination  ̶ European Gender Equality Law Review

•        Feminism and Human Rights – The Inclusive Approach to Interpreting International Human Rights Law  – UCL Jurisprudence Review

•        Rape Cases in the Jurisprudence of the European Court of Human Rights  – European Human Rights Law Review

•        Religious Symbols in Educational Institutions – Jurisprudence of the ECHR  – Religion and Human Rights Review

•        The Margin of Appreciation, Consensus, Morality and the Rights of Vulnerable Groups – Zb. Prav. fak. Rij.

•        Human Rights of Women and the Public/Private divide in International Human Rights Law – Croatia Yearbook of European Law and Policy.

In 2009 a committee of the Law Faculty of Zagreb confirmed that Dr. Radačić met the criteria for scientific appointment, but in the interdisciplinary field of gender studies and not under any recognized branch of law  ̶  including international law. This of course left her in a blind alleyway.  More recently, in January 2012, the Osijek Law School confirmed that her work did fall within the branch of international law, even though some of it could also come under family law or criminal law. They made a positive recommendation, but it was turned down this time by a majority decision of the National Committee, stating that her work did not fall within the field of international law. This Committee was apparently composed in part by members of the Zagreb faculty who had either been part of the earlier (negative) process or had publicly expressed opinions on her non-suitability. The National Committee does not publish a ‘motivation’ for its decision. ‘Kafkaesque’ is the term that comes to my mind.

 Dr. Radačić has started legal proceedings in Croatia – but the windmills of justice are notoriously slow and the (understandable) reluctance of courts to intervene in academic decisions is well known. I am not holding my breath. Read the rest of this entry…

Filed under: Editorials