EJIL: Talk!

We open this issue with a challenging article by Armin von Bogdandy and Ingo Venzke on the quest for democratic legitimacy of international adjudication in an age of both globalization and fragmentation. If this article sets the theoretical scene, the following two contributions give flesh and bones to such a concern and its challenges by looking, albeit in different ways, at the intertwinement between the international and the national realms. On the one hand, Marlies Glasius addresses the legitimacy gap that might exist between an international court and the realities of a national situation by studying the particular case of international criminal justice. Should international criminal courts be democratically accountable to populations affected by crimes in order to be legitimate? On the other hand, Carlos Espósito and Carrillo-Santarelli analyse the legitimatory function that national judges can exert in relation to international law. How can judicial actors situated at the national level operate as protectors of global legal goods? Lastly, David Koller explores another facet of the situatedness of international law: its cartography as an historicized narrative which gives to international law a more or less explicit normative direction.

As part of our occasional series, Critical Review of International Jurisprudence, we publish three pieces that shed light on some important recent developments. In the first piece, Marko Milanovic, a new Member of our Scientific Advisory Board, critically examines the reasoning behind the 2011 judgments of the European Court of Human Rights in Al Skeini v. United Kingdom and Al-Jedda v. United Kingdom, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures. In the second piece, Matthew Parish studies a recent opinion of the European Court of Justice, striking down a proposed European and Community Patents Court; he stresses and questions the importance of the ECJ’s self-perception as the final arbiter of EU law in its ruling. In the third piece, Agnieszka Szpak reviews the jurisprudence of the ad hoc International Criminal Tribunals in regard to the definition of a national, ethnical, racial or religious group as protected groups against genocide. Read the rest of this entry…

We begin this new issue of EJIL with four articles. Jaye Ellis explores comparative law’s contribution to the identification of general principles as a source of international law through a renewed understanding of the interplay between municipal legal systems and international law. Thilo Rensmann analyses the ways in which two Munich Alumni, Ernst Rabel and Karl Loewenstein, have influenced the evolution of international human rights law (see full free text of article here). The importance of scholarship is also illustrated by Anastasios Gourgourinis in his article as he suggests some tools which aim to overcome the fragmentation of international law: the general/particular international law and the primary/secondary norms di­chotomies which, in his view, constitute the unitary elements of the international legal system. Lastly, Daphne Richemond-Barak tackles another kind of fragmen­tation: the decentralized regulatory framework of the private security and military industry, and seeks to demonstrate the potential of Global Administrative Law meth­odology in understanding and contending with the growth of the private security and military industry.

In our occasional series, Critical Review of International Jurisprudence, Sonia Morano-Foadi and Stelios Andreadakis reflect on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights to achieve a more harmonious and convergent human rights system in Europe, based on a careful study of the divergent approaches of the ECJ and the ECtHR in the specific area of expulsion/deportation of third country nationals from the European territory.

In our rubric Critical Review of International Governance, Abigail Deshman sets out to identify the questions raised and the answers provided by a rare case of horizontal review between international organizations: the Parliamentary Assembly of the Council of Europe’s criticisms of the transparency and accountability of the World Health Organization during the H1N1 pandemic.

Two EJIL: Debates! this time. Read the rest of this entry…

We begin this issue with four articles which, each in their own way, return to the foundations of international law. The first two contributions challenge the traditional statist paradigm informing our contemporary understanding and conceptualization of international law. While Rafael Domingo, based on a careful analysis of the Roman and Enlightenment roots of international law, advocates for the creation of a new global cosmopolitan paradigm, Monique Chemillier-Gendreau, by revisiting the theoretical contribution of the French Reims Doctrine, calls for the reactivation of a critical approach to international law. The following two contributions focus on specific regimes of international law and shift the compass more to the South. Solomon Ebobrah analyses the positive contribution that complementarity can have towards fruitful inter-institutional relationships and the effectiveness of the African human rights system. Then Juan Marchetti and Petros Mavroidis offer a geology of the GATS negotiations and aim to shed light on its rationale through careful examination of the interaction between developed and developing countries before and during the Uruguay Round. This is a foundational piece.

In our occasional series, The European Tradition in International Law, orchestrated for this issue by Christian Tams, tribute is paid to the singular life and work of the international scholar and political activist: Walther Schücking. Following Christian Tam’s Introduction, Frank Bodendiek, Mónica García Salmones, Ole Spiermann and Jost Delbrück depict a vibrant portrait of Schücking’s multi-faceted life: the scholar, the idealist, the judge, in other words: the intellectuel engagé.

To follow, we invite you to pause for a moment and contemplate Roaming Charges: Moments of Dignity – Polish Youth on Warsaw’s Pilsudski Square.

Our journey in international law continues with two occasional series: Critical Review of International Governance and Critical Review of International Governance and Jurisprudence. The first features an article by Ronagh McQuigg, who seeks to answer the ever-green question: ‘How Effective is the United Nations Committee Against Torture?’ In the second, Stefano Piedimonte Bodini examines the legal implications of anti-piracy operations within the framework of the European Convention on Human Rights.

In this issue’s EJIL: Debate!, Alexander Orakhelashvili replies to Dapo Akande and Sangeeta Shah’s objection – which they formulated within the framework of a symposium on sovereign immunity published in EJIL issue 21:4 (2010) – to his position that a state engaging in violations of jus cogens has no entitlement under international law to claim immunity before foreign courts. The rejoinder offered by Dapo Akande and Sangeeta Shah shows that the conceptualization of state immunity, beyond the question of primacy of jus cogens over state immunity, is in itself an issue open to debate that EJIL is happy to host. This, in our view, is one of those occasions where we are reassured that the debate format can yield results which otherwise would be hard to come by.

In this issue we publish a Review Essay by Reut Yael Paz that touches on a son’s captivating account of the life of his father, both being eminent international lawyers: Elihu Lauterpacht’s The Life of Sir Hersch Lauterpacht. Furthermore, for the first time, we publish a more comprehensive Literature Review Essay by Stephan W. Schill on the literature and sociology of international investment law.

The  issue concludes with the poem The Poplars of East and West by the late Eric Stein

A new issue of EJIL has just be published. We begin this issue with a symposium, curated (!) and introduced by Nehal Bhuta, a member of the EJIL Scientific Advisory Board, presenting and then commenting on an article by Jeremy Waldron ‘Are Sovereigns Entitled to the Benefit of the Rule of Law?’ Four commentators, Alexander Somek, Thomas Poole, David Dyzenhaus and Samantha Besson, engage in a discussion on Jeremy Waldron’s main claim which he develops further in his response: that the issue of applicability of the Rule of Law in the sphere of international law must be assessed in relation to two correlated propositions (1) the ‘true’ subjects of international law and beneficiaries of the Rule of Law are individuals, whereas (2) states must be considered as agencies of the international legal system. Both Waldron and some of the distinguished commentators in this symposium might not be on the reading list of many of our readers. The renewed interest by general legal philosophy in matters international and in international law is to be welcomed and EJIL is happy to be at the forefront.

We are always open to suggestions from our readers and authors who would like to propose interesting symposia and serve as ‘curators’.

In our occasional series, The European Tradition in International Law, it is the heritage of the late French international lawyer, René-Jean Dupuy, that is analysed. Pierre-Marie Dupuy (a founder of EJIL) opens with a vibrant portrait of his father’s intellectual legacy in counterpoint with that of another giant of international law, his friend Wolfgang Friedmann. Alix Toublanc, Evelyne Lagrange and Julien Cantegreil, representing the French new international scholarship, then explore René-Jean’s Dupuy’s contribution to the shaping of contemporary international law and an understanding of its challenges.

In this issue we feature one central article: Steven Ratner’s important piece concerning the International Committee of the Red Cross’ strategies to foster compliance with the laws of war. It is part of a new interest in, and approach to, the question of compliance, an instance of which in the field of human rights we noted  in an article by Ryan Goodman some time ago. Ratner’s article repays careful study.

In this issue’s EJIL: Debate! Susan Marks and Steven Wheatley return to the challenges posed by the ideal of democratic legitimacy as applied to contemporary global governance through international law. Jean d’Aspremont, in his reply to Susan Marks, cannot but reassert the troubled and troubling democratic credentials of international law.

Take note of the Review Essay by Michael Waibel, reviewing six different books which have as their common objective the demystification of treaty interpretation: Carlos Fernández de Casadevante Romani, Sovereignty and Interpretation of International Norms; Richard Gardiner, Treaty Interpretation; Robert Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public ; Ulf Linderfalk, On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties; Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law; and Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body.

Our hope is to privilege this form of Review Essay covering different books (in different languages!) and encourage interested reviewers to write to our Book Review Editor to discuss future such projects.

Impressions – Karl Doehring RIP

Karl Doehring, the distinguished German international lawyer, passed away on 24 March  in Heidelberg. I got to know him years ago, at the beginning of my career, when I spent a semester as a Humboldt Fellow at the Max Planck in Heidelberg. It was an interesting experience. The highlight of the week was the famous Referentenbesprechung which confirmed, in part at least, some of our fast-held caricatures of Germany. It was impressively, enviably, oh so serious. That’s what academic discourse should be, week in week out. It was also impressively, laughably, hierarchical. Read the rest of this entry…