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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…

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Looking Back at EJIL 2012 – The Stats

Published on April 4, 2013        Author: 

This is the time of year when we look back and collate some statistics on the publication record of EJIL.

Here is a new statistic. In a previous Editorial (‘Demystifying the Editorial Process’), I explained that the Editorial Board did not regard EJIL as a mere refereeing service of the unsolicited submissions which arrive week in, week out. We also like proactively to explore areas of international law, raise questions, set scholarly agendas typically by commissioned symposia. We believe that this approach is what gives EJIL its distinct identity. I ‘guesstimated’ that the balance between solicited and unsolicited pieces was more or less half and half. Here are the hard numbers for 2012:

  • Solicited pieces: 23 for a total of 361 published pages
  • Unsolicited pieces: 25 for a total of 588 published pages.

We continue to think that we strike the right balance; let us know if you think otherwise.

Now to our ‘normal’ stats for 2012. A brief reminder: data for published articles reflects submissions and acceptances which in part took place the year before.

Gender

The percentage of submissions by women rose in 2012 to 33%, 12 percentage points higher than in 2011. Read the rest of this entry…

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Changes in the Masthead – Our Scientific Advisory Board

Published on April 4, 2013        Author: 

Some years ago our Board of Editors took the decision to involve a broader range of scholars in the running of our Journal by establishing a Scientific Advisory Board.  That decision has paid off. The intellectual and creative participation of this group of committed scholars has contributed in very positive ways to the development of our Journal. The time has come to refresh our Scientific Advisory Board.   We thank Vera Gowlland Debbas and Linos-Alexander Sicilianos for their valuable service to EJIL and we welcome a new group of members: Veronika Bilková, Laurence Boisson de Chazournes, Enzo Cannizzaro, Diane Desierto, Helen Keller, Doreen Lustig, Anthea Roberts and Christian Tams. Dapo Akande and Iain Scobbie, who also act as blog masters for EJIL: Talk!, will remain on the SAB, and we thank them for their continuing service.

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Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Published on April 3, 2013        Author: 

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation. Read the rest of this entry…

 

EJIL Vol. 24: No. 1 – In this Issue

Published on April 2, 2013        Author: 

We have taken the extraordinary decision to devote the majority of this issue to a single topic: the enduring legacy of Michael Walzer’s Just and Unjust Wars. The first edition of this classic work was published in 1977; some time ago a special event was held at New York University School of Law to mark its approaching 35th anniversary. This issue gathers together a generous selection of the papers presented on that occasion, together with some additional reactions and comments that were subsequently commissioned, in a symposium edited by Professor Gabriella Blum of Harvard Law School and myself. We trust that the range of critical perspectives presented here ̶ including Professor Walzer’s own reflections on the subject ̶ will sustain many more years of scholarly debate and discussion.

After the rich feast of the symposium, Roaming Charges offers a quiet visual interlude, moving back from Places to Moments of Dignity with a photograph entitled ‘The Pawnbroker, Singapore’.

The book review section complements the overall theme of this issue and includes reviews on publications dealing with child soldiering, the law of armed conflict and occupation, and international criminal law.

Finally, The Last Page presents a poem by Charlotte Innes, entitled ‘Burrough Hill’, that reflects an important goal of this feature of EJIL: to stimulate a more profound degree of introspection on topics and territory where law and life meet.

 

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Personal Statement

Published on January 1, 2013        Author: 

Many readers and contributors to EJIL have been congratulating me on my appointment as the next President of the European University Institute (EUI). I thank them all. I have also been asked endlessly if this will signify a masthead change at EJIL. Not for now. I will continue to serve as Editor-in-Chief of EJIL. The EUI has been the alma mater of both EJIL and myself. It is a homecoming for both.

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Catalonian Independence and the European Union

Published on December 20, 2012        Author: 

This post is part of an editorial that appears in the issue of EJIL (Vol. 23/4) that is published today

‘Vive le Québec libre!’ Who can forget de Gaulle’s mischievous and irresponsible speech in July 1967 during his visit to that hapless province, a catchphrase which has become since then the eternal rallying cry for Western tribalism. And now, joining the ever lengthening queue is Catalonia – the subtext of whose recently called elections is, once again, ‘independence’. The Basques are lurking in the background and the Scots are not even lurking but quietly forging ahead. And there is ‘Padania’ led by the awful Lega Nord in Italy, and the list does not end there.

Feeding this frenzy for secession and independence in Europe is the premise that all these new states will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted, the rough seas of ‘going it alone’ far more threatening. The Canadian Supreme Court, in its careful and meticulous decision on Quebec the reasoning of which remains valid today, clearly showed that none of these cases enjoy a right of secession under public international law, since all of them enjoy extensive individual and collective liberties enabling the full vindication of their national and/or cultural identity within their respective states.

But the issue is not one of rights, of law. It is simply ethically demoralizing to see the likes of Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the break-up of the Ottoman and the Austro-Hungarian Empires. These arrangements were well-intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Make no mistake, I am not suggesting for one minute that anyone in Catalonia is an ethnic cleanser. But I am suggesting that the ‘go it alone’ mentality is associated with that kind of mindset. Read the rest of this entry…

 

Slouching towards the Cool War

Published on December 19, 2012        Author: 

This post is part of an editorial that will appear in the issue of EJIL (Vol. 23/4) that will be published tomorrow.

It was a feature of the Cold War that the Security Council was essentially immobilized in its principal functions under Chapter VII and at times Chapter VI. Since most conflicts were refracted through the dichotomous politics of the Super Powers and at times protagonists were little more than clients of the antagonists of the Cold War, both holding the veto, the Security Council was at best a place to hear canned ideological speeches before washing such down in one of NYC’s more salubrious eateries surrounding the Shoebox.

The year 1989 ushered in a different politics and a different paradigm. Suddenly, though far from perfect, the Security Council was no longer that dead letter of the past, with important initiatives carried out under its auspices and with its authority. The difference between Iraq I and Iraq II was telling: Iraq II was not a regress to the Cold War, a sign of failure and irrelevance. Iraq II was a functioning Security Council exercising its authority to say – at best or worst – a muted No.

The wars and bloodshed that trouble us most now are no longer the surrogate conflicts of the Cold War, internal or international. One is most concerned with dreadful and savage internal conflict, which can no longer with any credibility come under the gruesome legitimacy of ‘self-determination’, with its ‘hands off’ legal implication. Darfur in the past, and Syria – 25,000 senseless dead, 250,000 homeless and displaced and even larger numbers of external refugees – right now bracket a whole range of humanitarian catastrophes, mostly man made.

Responsibility to Protect (R2P) has featured in these pages with some fanfare, but somehow has not translated into an operational duty of action on the body at the centre of such potentialities, the Security Council. There was a moment when one thought that the locus of R2P would shift to the regional – after all, the humanitarian action surrounding Kosovo was NATO driven – circumventing, with questionable legality, the Security Council, but at least lending it the legitimacy that comes from collective and deliberative process rather than from unilateral cowboyism. But recent events in the South China Sea, and the inability of ASEAN to produce even a common communiqué, are just one of the signs that we may be entering a Cool War. No, we do not find this or that super power facing each other with arsenals at the ready, and the talk is very different. And yet, from one point of tension and global threat to another, whether Africa, the Mid East (Syria, Iran), South East Asia, the Koreas, Japan and China, the Security Council or regional bodies seem to be regularly thwarted by veto, by talk of veto, or by some other lack of consensus. The rhetoric is typically non-Cold War, but the actions begin to evoke memories. The voice is Jacob’s, but the hands are Esau’s. And suddenly we are back to the usual suspects. The Cool War upon us. Not very cool.

 
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