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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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Roll of Honour

Published on December 18, 2012        Author: 

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

In a recent Editorial, both in EJIL and I.CON, I inveighed against the difficulty of finding scholars who will agree to peer review and who, once agreed, will do it in a timely fashion and with a level of detail which enables us to take meaningful decisions.

We wish to thank the following for their efforts in 2011 and 2012. We hope we have not forgotten anyone.

Dapo Akande, José Alvarez, Stelios Andreadakis, Antony Anghie, Helmut Aust, Petra Bard, Eyal Benvenisti, Nehal Bhuta, Leora Bilsky, Michael Bothe, Kieran Bradley, Jutta Brunée, Karine Caunes, Cai Congyan, Luigi Crema, Jean d’Aspremont, Kevin Davis, Gráinne de Búrca, Katherine Del Mar, Bruno de Witte, Isabel Feichtner, Francesco Francioni, Giorgio Gaia, Kirsty Gover, Vera Gowlland-Debbas, Andrew Guzman, Laurence Helfer, Robert Howse, Jan Klabbers, Nico Krisch, Andrew Lang, Brian Lepard, George Letsas, Doreen Lustig, Marina Mancini, Petros Mavroidis, Marko Milanovic, Christoph Möllers, Sonia Morano-Foadi, Liam Murphy, Burt Neuborne, Tzvika Nissel, Georg Nolte, Alexander Orakhelashvili, Joost Pauwelyn, Jacqueline Peel, Anne Peters, Diarmuid Phelan, Arie Reich, Adam Roberts, Anthea Roberts, Iain Scobbie, Joanne Scott, Gregory Shaffer, Malcolm Shaw, Alexander Sicilianos, Bruno Simma, Guy Sinclair, Thomas Skouteris, Maya Steinitz, Alan Khee Jin Tan, Antonello Tancredi, Ruti Teitel, Ingo Venzke, Frans Viljoen, Armin von Bogdandy, Tania Voon, Matthew Waxman, Wouter Werner.

Filed under: Editorials, EJIL

EJIL Vol 23: No. 4 – In this Issue

Published on December 17, 2012        Author: 

If there remain any lingering doubts regarding EJIL’s commitment to cutting-edge scholarship – or its inveterate eclecticism – the first two articles in this issue should put them to rest. In his article, Jens David Ohlin takes a fresh and exciting look at the significance of game theory for international law. And for something completely different, Mark Neocleous makes an important contribution to critical scholarship on international law by introducing the concept of ‘primitive accumulation’, central to Marx’s account of capitalism and colonialism, into international legal theory.

Our two occasional series, Critical Review of International Governance and Critical Review of International Jurisprudence, return in this issue. In the first, Laurence Boisson de Chazournes and Edouard Fromageau analyse the judicial features and development of the World Bank’s sanction process, while Arman Sarvarian examines the ethical standards applicable to agents and counsel appearing before the European Court of Justice and the European Court of Human Rights. In the second rubric, Juliane Kokott and Christoph Sobotta reconsider that well-worked topic, the Kadi case, and find something new and interesting to say about it; their piece will help scholars and practitioners alike to frame and consider the issues to be addressed in the forthcoming second Kadi ruling.

Roaming Charges brings us back from Moments of Dignity to Places, this time Places of Kitsch, with a photograph of tell-tale signs from Orlando, California.

This issue presents a collection of essays offering diverse reflections on Nino Cassese’s last work, Realizing Utopia: The Future of International Law. All written by past and present members of EJIL’s Editorial Board and Scientific Advisory Board, the collection provides a fitting homage to our late, dearly missed colleague.

We continue with a wonderful addition to our series of Impressions, a book review rubric that invites distinguished scholars to reflect on a book that strongly influenced their intellectual development. Having rediscovered Gandhi’s Hind Swaraj Or Indian Home Rule later in his career, as he writes, B.S. Chimni reveals how insights from that text into the significance of the ethical and spiritual self might complement and correct failings in a Marxist analysis of the material structures of global capitalism.

We round out the issue with a special treat on The Last Page: Le Droit des Nations, Ode, by Eusebe Salverte. The poet was a young French republican who lived through the tumultuous times of the French Revolution and its aftermath. Having previously served briefly in the Ministry of Foreign Affairs – he was forced to resign because of his sympathy for the Revolution – he earned a living as a teacher and achieved some prominence as a writer of both fiction and non-fiction on a wide variety of topics. Later in life he enjoyed a highly successful career in politics, and was repeatedly elected to the legislature in Paris. The Ode itself was initially published as a pamphlet circa 1799, apparently in reaction to a brutal attack upon three French plenipotentiaries as they were leaving the unsuccessful Congress of Rastatt in April of that year. All but ignored for nearly 200 years, it was reprinted in its original form (including the poet’s own annotations), together with a learned introductory essay by Edward Gordon, in the 1995 Finnish Yearbook of International Law [Gordon, ‘Salverte’s Ode’, 6 Finnish YB Int’l L (1995) 479]. We thank Mr. Gordon for contributing the Ode to EJIL, and hope its appearance here will reawaken interest in the poem and its author.

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Impact Factor – The Food is Bad and What’s More There is Not Enough of It

Published on October 19, 2012        Author: 

A loyal reader recently sent me the following email:

Just a quick note to let you know that EJIL and I.CON get the first and third position respectively in the general ranking of NON US Law Journals elaborated by Washington and Lee University School of Law (sections non US law journals)  Congratulations!

The only reason I was happy to learn this exciting news was that no one will be able to dismiss what I am about to write as prompted by ‘sour grapes’.

But let us backtrack a bit. I invite you to visit this Washington and Lee University School of Law website. It requires some getting used to, especially in setting the search parameters. Experiment a bit (after you read this Editorial!) In its own way it is admirable and provides an important tool for legal academics. Its purpose is simple enough. When an author has to choose in which journal to publish his or her article, is there a way of making a choice based not on an impression of prestige or importance but on some hard data on readership, citations, impact (whatever that may mean) and the like? This meticulously constructed database (not the most user friendly, but it should not be a challenge to smart law professors and the like) tries to help in this worthy endeavour. In the USA, in which most, though not all, law journals are edited by students and associated with a law school, the typical choice used to be based on the ‘ranking’ of the law school with which the journal is associated. The Washington and Lee database tracks instead impact through citation and shows the law school ranking (itself a problematic notion) to be a crude and approximate measure. Especially when it comes to specialized, rather than ‘general’, law journals, the law school ranking is a bad proxy for readership and influence.

Like credit rating agencies, there is more than one outfit which tries to provide this service. The Washington and Lee database is interesting since, aware of the problematic nature of establishing criteria for influence, it allows the user to vary the parameters according to which tables of influence will be generated. The overall methodology seems to be the same: an electronic database of legal journals is selected and then citations to articles are computed. Simply counting citations, might, however, skew the impression of influence of a journal. You might, for example, have one or two highly cited articles published by this or that journal whereas almost everything else is hardly ever cited, and yet those one or two star pieces could skew the overall influence ranking of the journal compared to others. Read the rest of this entry…

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EJIL – the Beginning of an Existential Debate & Masthead Changes

Published on October 19, 2012        Author: 

At the last meeting of our Editorial and Scientific Advisory Boards I announced the beginning of a discussion which, in my view, will be the most fateful for the future of EJIL since its founding 23 years ago. There are two linked issues which inform this discussion and they can be stated simply enough, though resolution and decision will be anything but simple.

Should EJIL continue to be published in both hard copy and digital versions or should it move to digital only? And should EJIL continue to be published by an academic press such as our current publisher, OUP, or should it become self-publishing?

The two issues are linked because if we decide that there is virtue (my current belief, but increasingly a minority one, I suspect) in continuing to publish a hard copy paper version of EJIL, then we will have to continue to use the services of an academic or commercial press (the distinction between the two is increasingly blurred these days).

The principal case for going ‘digital only’ is that if we did that we could offer EJIL, in the very same form it is published today, as a free service to the whole world and simply abolish subscriptions, following the admirable model of the German Law Journal. To do this, we would have to cut our ties with OUP since, given the costs of running a big press like OUP, even the digital only’ option would entail very considerable subscription rates both to institutions and individuals. Read the rest of this entry…

Filed under: EJIL, EJIL Analysis, Journals

EJIL Volume 23, Issue 3: In this Issue

Published on October 18, 2012        Author: 

The latest issue of EJIL (Vol, 23, Issue no. 3) has just been published. We open this issue with an article by Alan Boyle, who grapples with the future of environmental protection in international law viewed from a human rights law perspective and in relation to three different aspects (i) procedural rights, (ii) the controversial notion of a right to a decent environment, and (iii) the extraterritorial application of existing human rights treaties to transboundary pollution and climate change. In all three fields, two related questions appear fundamental: Would it be appropriate to go beyond a mere greening of the existing human rights law coupled to a judge-made law approach? If so, which international institutions, mechanisms and instruments could or should be mobilized?

If the plurality of legal orders is undeniably one of the parameters to take into account when answering these questions, it is also an issue which lies at the basis of the Symposium organized by the American and European Societies of International Law (ASIL and ESIL), with additional support from the Hague Institute for the Internationalisation of Law (HiiL) Project on Transnational Private Regulation, and published in this issue. The symposium, regrouping the contributions of Fabrizio Cafaggi, David D. Caron, Daniel Bodansky, Gregory Shaffer, Francesco Francioni, Petros C. Mavroidis, Elisa Morgera, and André Nollkaemper, aims indeed to define the multi-faceted notion of global public goods (GPG). Foundational issues are thus discussed, such as the conceptual and analytical frameworks for understanding GPG; the modes and technologies of protection of GPG and the related governance and legitimacy issues that such techniques raise; the value that the concept of GPG adds to discourse within international law, and vice versa, the value that an international law perspective adds to our understanding of GPG. These foundational issues are also discussed through analysis of specific instantiations of GPG, such as international cultural goods, free trade, and environmental protection.

EJIL symposia allow our Editorial Board and Scientific Board to discharge their responsibility of introducing into the public discussion issues that we consider of importance but which the normal mail box may not necessarily throw our way, and certainly not in the sustained, probing way that a symposium can. I trust and hope that you share my view that it was high time that the relationship between global public goods and international law were aired in such a way. Read the rest of this entry…

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