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After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done. Read the rest of this entry…


Peer Review Redux

Published on November 4, 2014        Author: 

A word on the continuing crisis in peer review. EJIL is committed to upholding the highest standard of peer review, both as a guarantee of the quality of articles we publish and because we are aware of its importance to authors who are seeking appointment or promotion. As previously explained – see my earlier Editorial, in vol. 23, issue 2– it is increasingly difficult to find external referees who both meet our yardstick of excellence and are willing to give time to this selfless service. I wrote then that it was not infrequently the case that the first and second and even the third external referee to whom we turned would decline our invitation, whilst the unfortunate author, not unreasonably, became incensed at the length of time taken to reach a decision. Since then, we have on occasion had the experience of having six or seven potential reviewers decline before securing one who is willing to take up the task! And then of course more time passes while we wait for the review to be turned around …

These are egregious cases. The vast majority of reviews are, thankfully, completed on time and decisions made on manuscripts within a reasonable timeframe. We are grateful for the sterling services of our reviewers, some of whom we call upon regularly. We now acknowledge them in our annual Roll of Honour (published in the first issue of each volume) and offer them a free one-year online subscription to the Journal as a token of our appreciation. We welcome other suggestions to improve our review procedures while maintaining their integrity. In the meantime, we beg our authors to be patient with the process.

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EJIL Volume 25:3–In This Issue

Published on November 3, 2014        Author: 

This issue offers another abundance of pioneering scholarship in diverse aspects of international law. It opens with an article by Jan Klabbers that traces the emergence of the now-orthodox functionalist theory in international institutional law, finding its origins in ‘an encounter with colonial administration’, and specifically in the early 20th-century writings of the American political scientist Paul Reinsch. In her article, Michelle Leanne Burgis-Kasthala likewise engages with important post-colonial themes in critical international law scholarship, but does so through a methodologically innovative ethnographic study of statehood narratives among Palestinians working in international law and human rights. Next, Mark Chinen, urges a reconsideration of the law of state responsibility in light of complexity theory. An article by Joost Pauwelyn, Ramses Wessel and Jan Wouters follows, examining the stagnation of formal international law, assessing the reasons for the rise of more informal forms of international lawmaking, and considering a range of possible responses. Finally in this section, Mónica García-Salmones Rovira’s article examines the ‘turn to interests’ shaping positivist international legal theory, as exemplified in the writings of Lassa Oppenheim and Hans Kelsen. A Reply by Jörg Kammerhofer contests the centrality of ‘interests’ in the work of Kelsen, as well as the methodology employed to discover it, and is followed by a Rejoinder by García-Salmones Rovira.

In Roaming ChargesMoments of Dignity, we feature a photograph entitled Keepers of the Sultan’s Treasures, shot in Brunei’s Regalia Museum.

Another important entry in our occasional series, The European Tradition in International Law, focuses on the Russian/Estonian jurist F. F. Martens. Lauri Malksöo provides an overview of Martens’ life, thought, and reception in international legal scholarship. Rein Müllerson draws parallels between issues in Martens’ time and our own. Rotem Giladi offers an original, critical reading of Martens’ most signal contribution, the clause to which he gave his name. And Andreas Müller examines Martens’ doctoral thesis on The Office of Consul and Consular Jurisdiction in the East, in light of the 19th-century dichotomy of civilized and non-civilized nations.

Under our rubric Critical Review of International Governance, Shashank P. Kumar and Cecily Rose present a quantitative empirical study of lawyers appearing before the ICJ. Read the rest of this entry…

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Fateful Elections? Investing in the Future of Europe

Published on July 31, 2014        Author: 

In an earlier Editorial I speculated on the potential transformative effect that the 2014 elections to the European Parliament might have on the democratic fortunes of Europe. I spoke of promise and risk. So now the results are out. How should we evaluate them?

I will address the three most conspicuous features of the recent elections – the anti-European vote, the continued phenomenon of absenteeism, and the innovation of the Spitzenkandidaten.

The Anti-European Vote and the I-don’t-Care-About-Europe Vote

The fathers have eaten sour grapes and the children’s teeth shall be set on edge.

In trying to explain the large anti-European vote (winners in France and the UK as well as some smaller Member States of the Union), much has been made of the effect of the economic crisis. Sure, it has been an important factor but it should not be used as an excuse for Europe to stick its head in the sand, ostrich-like, once more. The writing has been on the wall for a while.

In 2005 the constitutional project came to a screeching halt when it was rejected in a French referendum by a margin of 55% to 45% on a turnout of 69%. The Dutch rejected the Constitution by a margin of 61% to 39% on a turnout of 62%. (The Spanish referendum which approved the Constitution by 76% to 24% had a turnout of a mere 43%, way below normal electoral practice in Spain – hardly a sign of great enthusiasm.) I think it is widely accepted that had there been more referenda (rather than Ceausescian majority votes in national parliaments) there would have been more rejections, especially if the French and Dutch peoples had spoken at the beginning of the process.

It is also widely accepted that the French and Dutch rejections and the more widespread sentiment for which they were merely the clamorous expression were ‘a-specific’: they did not reflect dissatisfaction with any concrete feature of the ‘Constitution’ but expressed a more generic, inchoate, inarticulate unease, lack of enthusiasm not only for ‘more Europe’ but for Europe as it had become.

This early and less pathological ‘anti-European’ manifestation could not be explained away as a reaction to ‘the crisis’ – it occurred at a moment of prosperity and reasonably high employment. Europe was also riding high in the world, a promising contrast with America at its post-Iraq worst. Xenophobia was less à la mode and the immigrant issue less galvanizing – the supposed ‘invasion from the East’ was not a real issue. Europe was not ‘blamed’ for anything in particular, but it was clear that it had largely lost its mobilizing force. Read the rest of this entry…

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Masthead Changes

Published on July 30, 2014        Author: 

The time has come to renew our Board of Editors and Scientific Advisory Board. We thank Iain Scobbie for his valuable service to the Journal, particularly as blog master for EJIL: Talk!, and we welcome Jean d’Aspremont and Jan Klabbers to the SAB. Dapo Akande and Anthea Roberts will now join the Board of Editors, whilst Francesco Francioni, after a number of years on the Editorial Board, will return to the SAB. We thank him for his committed and extraordinarily constructive contribution to the Journal.

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EJIL Volume 25:2–In This Issue

Published on July 29, 2014        Author: 

We are pleased to open this issue with a second entry under our new rubric, EJIL: Keynote. In this lightly revised text of her lecture to the 5th European Society of International Law Research Forum, Anne Orford traces, with characteristic elegance and insight, the changing notions of science and scientific method that have shaped the international legal profession over the past century. Her account suggests important lessons for contemporary debates regarding the profession’s relevance and ability to respond to world problems.

The next three articles in the issue illustrate the growing toolkit of methodologies for the study of international law. Sergio Puig’s study of the social structure of investor-state arbitration makes innovative use of network analytics. Sharing some of the same methodological inclinations, Grégoire Mallard provides an extraordinarily rich historical-sociological account of the formation of the nuclear non-proliferation ‘regime complex’. And Tilmann Altwicker and Oliver Diggelmann adopt a broadly social constructivist approach to analyse the techniques used to create progress narratives in international law.

This issue includes a selection of papers from the Second Annual Junior Faculty Forum for International Law, held at the University of Nottingham in May 2013. Surveying the discourse and practice of minority language rights, Moria Paz analyses the striking disparity between the rhetoric of maximal diversity-protection found in human rights treaties and the writings of scholars, on the one hand, and the much more attenuated rights that are actually recognized in the jurisprudence and practice of international human rights adjudicatory bodies, on the other. Arnulf Becker Lorca recounts a ‘pre-history’ of self-determination that highlights the role of semi-peripheral élites in converting that political concept into an international legal right. We hope to publish one or two more papers from the Second Annual Junior Faculty Forum in future issues of the Journal.

In Roaming Charges, we feature a photograph of Places of Social and Financial Crisis: Dublin 2014. Read the rest of this entry…

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To Juncker or Not to Juncker – Is That the Question?

Published on June 26, 2014        Author: 

(Excerpt from the forthcoming Editorial of EJIL 25:2)

Far beyond the question of whether or not Council should feel obligated, or should even if not obligated, to select as President of the Commission the Lead Candidate of the largest party in the European Parliament, is a far more profound issue: should the President of the Commission be ‘Political but not Partisan’ (the Barroso thesis) or should voter preference in choosing not only this or that President but this or that party (with an ideological line) be translated into the policies espoused by the President of the Commission and indeed the Commission itself.

Strange as it may seem, it appears that this issue was not addressed with real seriousness even within Parliament itself and has not been a central part of the debate about the selection of the next President even on the eve of the Summit. David Cameron has (for the most part) based his objection on the specific political convictions (as he sees them) of Juncker as regards the future of the Union and not to the potential sea change which the Lead Candidate exercise potentially ushers.

But first, is Council really obligated to follow the election results in this manner?

I think the argument based on Article 17 TEU that the European Council is obligated to follow the Parliamentary choice is overstated both as a matter of law and as a matter of politics.

Read the rest of this entry…

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Announcing EJIL: Live!

Published on May 13, 2014        Author: 

The Editorial Board of the European Journal of International Law is delighted to announce the launch of the Journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the Journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue.

The first video episode features an extended interview between the Editor-in-Chief of the Journal, Joseph Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” appears in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the Journal’s Book Review Editor, Isabel Feichtner, and the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.

Episodes of EJIL: Live! can be accessed, in both audio and video formats, via the EJIL website at and EJIL:Talk! at EJIL: Live! is also available by subscribing to our EJIL: Live! channel on YouTube for videos and our EJIL: Live! account on SoundCloud to listen to our audio podcasts. Additional, special episodes will also be released from time to time to address a range of topical issues.

Stay tuned in with EJIL: Live!

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The International Society for Public Law – Call for Papers and Panels

Published on April 4, 2014        Author: 

On 26-28 June 2014, in Florence, the European University Institute and NYU-La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON•S).

We invite all our readers to submit proposals for either individual papers, or even more ambitiously, proposals for panels which, if selected, will be presented at the Inaugural Conference. Full details, modules for submitting proposals and for registering for the conference may be found at the society’s website. Registration for the Inaugural Conference includes the first annual membership fee in ICON•S and a free one-year online subscription to ICON, the International Journal of Constitutional Law.

  • Why create a new international learned society – are there not enough already?
  • Why public law – if we typically teach Constitutional Law, Administrative Law, or International Law (and now the much à la mode Global Law)?
  • And why does the word “comparative” not feature in the title of the new Society? Surely if we bring together constitutionalists from, say, Japan and Canada or administrative lawyers from Italy and Turkey – their common language will be Comparative Law?

The initiative to create an International Society of Public Law emerged from the Editorial Board of I•CON – the International Journal of Constitutional Law. For several years now I•CON has been, both by choice and pursuant to the cartographic reality of the field, much more than a journal of comparative constitutional Law. I•CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered, to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also – and increasingly so – scholarship that reflects both legal reality and academic perception; scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. That kind of remapping of the field is apparent also in EJIL. Its focus remains of course international law, but the meaning of international law today will often include many elements of the above. Read the rest of this entry…

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Van Gend en Loos – 50th Anniversary

Published on April 3, 2014        Author: 

Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to ‘celebrate’ Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of papers which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.

This symposium illustrates, if an illustration were needed, the rationale that underlies the creation of the new International Society for Public Law. It also marks a publishing innovation for us: there is a single Table of Contents of the Symposium in EJIL and I•CON. But the articles are split between the two journals. It was not always easy to decide which should be published in either journal but this joint venture enabled us to bring to print a larger than usual symposium.

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