Home Archive for category "Editorials"

Continent in Crisis

Published on October 7, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).

In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.

Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success? Read the rest of this entry…

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There is Chutzpah and Then There is David Cameron

Published on October 6, 2016        Author: 

It is hard to translate the Yiddish word Chutzpah. Cheek doesn’t quite capture it. ‘What a cheek’ is not the same as ‘What Chutzpah’. Chutzpah involves a certain brazenness. ‘What Chutzpah’ is usually associated with a rubbing of the eyes or a shake of the head in disbelief. Even a kind of perverse admiration. The classical example of Chutzpah is the son who kills his mother and father and then turns to the judge and pleads: Mercy, I’m an orphan.

Cameron has taken Chutzpah to new heights.

A good place to start would be in the final weeks of the campaign when Cameron’s refrain was ‘Brits don’t Quit!’ Rub your eyes – this from the Brit who just months earlier had presented his ‘either we get this and this and that or, well yes, we quit’. Takes some nerve, does it not? Of course to have any credibility in his pre-referendum Brussels negotiations he would have to sell himself and his country as ready to quit.

You would think that in playing against the grain of ‘Brits don’t quit’ there would have to be something huge at stake. You may just remember the weeks that became months when the world and its sister were waiting for him to present his list of demands. You will certainly not have forgotten the disdainful disbelief from all and sundry when he finally presented his Potage of Lentils – that thin gruel of demands for which he was willing to gamble the future of the UK membership of the European Union and much more.

It was also an insult to one’s political intelligence. As a ploy to address internal party politics – the real reason behind the whole unfortunate manoeuvre – did he really believe that even if his demands were met in full (and they mostly were) this would keep the wolves at bay? Even more damning in my view, it was clear that Cameron never grasped the serious problems of the European construct which, if one were to use the ‘nuclear option’ of threatening to quit, could and perhaps should have been raised. Read the rest of this entry…

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On My Way Out – Advice to Young Scholars III: Edited Book

Published on October 5, 2016        Author: 

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the third instalment and it is one in which, even more than my earlier instalments, I look back ruefully and in St Augustine fashion offer a ‘don’t do what I did…’ set of suggestions.

A more appropriate title would have been Unedited Books and the crux of my advice is – proceed with caution, avoid if at all possible.

The routine is well-known and well-practised. You receive an invitation to present a paper at some conference. You accept (see below). You may adapt something you have already written or something that you are working on which is in some way connected. It is often not exactly what the conveners had asked for or had in mind, but perhaps close enough so as not to have to reject the invitation. The conveners are often accomplices in this little approximation. They are committed to the conference; it is often part of some grant they have received. Almost always you are pressed for time – after all it is not as if these invitations arrive when you are sitting back, twiddling your thumbs and looking for things to do. In general they are disruptive of your flow of work. So the result is not as good as it might have been. Sounds familiar?

You attend the conference. It shows. The papers presented are of very variable quality and relevance. There is the usual conference overload so that the habitual 10-15 minute ‘commentator’ input may be interesting but of limited value to your paper. The general (‘unfortunately we only have xx minutes for questions’) discussion is even less so – how many actually read the papers (which not infrequently arrive two days before the conference)? Still sounds familiar? Read the rest of this entry…

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From the Editor’s Mailbag

Published on October 4, 2016        Author: 

The following are two letters received from Claus Dieter Ehlermann and Robert Howse respectively.

“I am writing to you as Editor of the European Journal of International Law about the recent article by Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ in the EJIL, Volume 27, No. 1 (2016). At page 41, Professor Howse devotes a paragraph to the resignation of Debra Steger, the first Director of the Appellate Body Secretariat, in late March 2001.

As Chair of the Appellate Body at that time, I would like to offer some facts to avoid misunderstandings.

First, as WTO Director of the Information and Media Relations Division, Keith Rockwell, said at the time, Professor Steger resigned for personal reasons. Second, the Appellate Body Members have always held her in the highest respect, she has always been very loyal and respectful to us, and we remain very close friends to this day. Third, there was absolutely no linkage whatsoever to the EC-Asbestos amicus brief issue. All seven Appellate Body Members and Professor Steger were in complete agreement on this issue and case all the way through.”


“We should all be grateful to Claus-Dieter Ehlermann, former Member of the WTO Appellate Body, and one of its original Members, for clearing the air concerning the Appellate Body’s relationship with its Secretariat, and particularly the head Debra Steger, during the turbulent formative years that were marked by, inter alia, the controversy over amicus curiae briefs.  I have always had excellent amicable professional relations with both Dr. Ehlermann and his former Appellate Body colleagues, as well as with Ms. Steger; given my high esteem for all involved it is comforting to be assured that the controversy in question did not in any way test or strain a vital working relationship that was very likely crucial to the Appellate Body’s early success as a true trade court.”


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Conflicts of Interest in the Editorial Process

Published on October 4, 2016        Author: 

EJIL encourages the submission of articles that challenge received knowledge and subject institutions of the international legal order to critical scrutiny. Inevitably, this may result in conflicts of interest in the editorial process. Members of the Board of Editors are not remote from the life of international law. They write articles and books, act in cases, serve on courts and tribunals. From time to time we receive a submission which may implicate such: be critical of a book or article written by a Member of the Board, relate favourably or otherwise to a case decided by a Member of the board or in the process of being decided, etc. Our standard practice when such a conflict of interest comes to our attention is immediately to recuse the Member in question from any editorial decision pertaining to the item concerned.

Likewise, if someone writes on a case in our Critical Review of Jurisprudence section we would normally not accept such from one of the counsel in the case. Where dealing with such a case is part of a larger piece, we expect full disclosure to the reader.

Book reviewers are asked to recuse themselves if there is a conflict of interest such as a relationship of close friendship or enmity. Read the rest of this entry…

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EJIL: In this Issue (Vol. 27 (2016) No. 2)

Published on July 26, 2016        Author: 

This issue opens with a pair of articles that address questions of normative coherence and contestation in two central areas of international law. In the first article, Monica Hakimi and Jacob Katz Cogan address the presence of a puzzling incoherence in the legal regime relating to the use of force. Their article theorizes that this incoherence derives from the combination within the regime of two distinct ‘codes’, thus offering a useful framework for thinking through interpretive debates in the field. In our second article, Karen Alter, James Gathii and Laurence Helfer offer an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent. Their article usefully highlights the work of courts that may remain unfamiliar to many of our readers, while casting new light on a range of theoretical debates relating to international courts. Our EJIL: Live! interview with Karen Alter deepens the discussion.

The next three articles likewise address important questions of normative authority in international law. Nicole Roughan argues that international law’s claims to authority should be understood as claims to relative authority, dependent upon the relationships and interactions with other institutions. Elisa Morgera offers some conceptual clarity in the little-investigated notion of fair and equitable benefit-sharing, identifying shared normative elements from different regimes to help develop a common core to this concept. Finally, David McGrogan provides an incisive analytical framework for understanding both the growth of the culture of human rights indicators and its unintended consequences, showcasing the competing priorities of certainty and uniformity on the one hand, and experiential and conversational approaches on the other.

Our occasional series on The European Tradition in International Law returns in this issue, featuring a remarkably rich and varied collection dedicated to the controversial 19th-century Scottish jurist, James Lorimer. The collection opens with a short overview by Stephen Tierney and Neil Walker, highlighting the tension between Lorimer’s remarkable foresight in relation to a number of developments in international law, cast against his deeply embedded racial prejudice. This darker side of Lorimer’s legal science is examined further by Martti Koskenniemi, whose article considers the importance of racial hierarchies that underpinned Lorimer’s conception of statehood. Gerry Simpson traces the legacies of these attitudes in international law, including the extension of Lorimer’s hierarchies in legally codified power. Karen Knop likewise explores the continuing resonances of Lorimer’s thought in the present day, focusing in particular on his notion of ‘private citizens of the world’. Stephen Neff discusses Lorimer’s views on war and neutrality, highlighting the remarkable modernity of his approach in seeking a systematic global regulatory framework.

Roaming Charges in this issue features a photograph of pupils at the Jean Paul II High School, Kibera, Nairobi.

In the last article in this issue, appearing in our regular series Critical Review of International Jurisprudence, Katie Sykes explores the use of science in the emerging field of ‘global animal law’, through an analysis of two recent and important international legal decisions, the first by the Appellate Body of the World Trade Organization in the EC–Seal Products dispute, and the second by the International Court of Justice in Whaling in the Antarctic.

The Last Page in this issue, entitled ‘Reasons’, is by Liam McHugh-Russell.

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EJIL on Your Tablet or Smartphone

Published on July 26, 2016        Author: 

ESIL members will know that, following the decision taken at the 2015 General Assembly meeting, membership of the Society now includes an online subscription to EJIL and access to the EJIL app. The app, available for both Apple and Android systems, allows you to download and read the Journal on your mobile device – anywhere and at any time.

ESIL members can access the EJIL app in just a few, simple steps:

  1. Shortly after joining ESIL, you will receive an OUP customer ID number
  2. Go to and enter that number plus your email address and choice of password
  3. The site will authenticate you as a user
  4. Go to the appropriate App Store (Apple or Android) and download the EJIL app
  5. When you reach the login page enter your registered email address and password

For ESIL members who wish to receive the print edition, a special reduced price subscription is available.

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One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?

Published on July 25, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Laurence Boisson de Chazournes, member of the EJIL Editorial Board, to write the Editorial for the latest issue of EJIL (Vol. 27 (2016) No. 2).

The Conference of the Parties in Paris in December 2015, with the subsequent adoption of the Paris Agreement on Climate Change, was a significant event, from both a political and a legal perspective. It is politically significant not least because it is the first universal agreement on climate change, involving 195 countries and the EU, to be adopted. However, the event was also legally significant for a host of reasons upon which this Editorial will touch. Overall, it represents an evolution in legal technique, especially with regard to the measures and procedures used to achieve the intended objective. Legal events like this are noteworthy in the way that they introduce innovations and provoke reflection.

The Paris Agreement is indeed an interesting legal creature. In trying to shape a better future than is foreseeable, if present consumption patterns of fossil fuels continue, the Agreement adopts a legal technique that breaks new ground. It envisages the elimination of the use of fossil fuel energy by the end of the 21st century. This would be quite an achievement, given that fossil fuel energy has shaped the economy of the 20th century in so many different ways. The Agreement is intended to come into force in 2020, and the objective it sets is to be achieved in the second part of this century, which is indeed several decades from now. It goes without saying that a great number of us will no longer be here when the goals of the Agreement are to be realized, and we are thus being asked to act for the generations to come. Interestingly, in addition to building a long-term future, the Agreement makes provision for meetings, as well as for tasks to be achieved at these meetings, in the near future. Some of these meetings will take place in 2018, 2023, 2025 and thereafter. The path to the longer-term objective is thus paved with the fulfilment of shorter-term commitments. Read the rest of this entry…

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Ten Good Reads (Vol. 27: 1)

Published on April 25, 2016        Author: 

By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom,  I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy!

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)

A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court.  Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say,  Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement.

Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini,  Italian Constitutional Justice in Global Context (Oxford University Press, 2015)

This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more.

Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015) Read the rest of this entry…

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Vital Statistics, EJIL’s Assistant Editors, and With Gratitude- Shirley Wayne (Vol. 27: 1)

Published on April 22, 2016        Author: 

Vital Statistics

As EJIL readers will know, we publish statistics each year on the submissions received, accepted and published in the Journal during the previous 12 months. We call them ‘Vital Statistics’ because we believe that it is vitally important to observe and understand trends in the submission and publication of articles in our Journal: Who is writing, where are manuscripts coming from, which languages do our authors speak, can we detect any changes in submission trends? We present our statistics with no frills, letting them speak for themselves.

There are no special requirements for authors wishing to submit to EJIL. We encourage the new, the innovative, the young and the well-established to submit to EJIL, but there is no editorial affirmative action in selecting manuscripts for publication. Our double-blind review process makes certain of that. Of course, EJIL does commission some articles, and readers will find statistics on the incidence of unsolicited and commissioned articles in our pages here as well.

We have seen a very gradual rise in the percentage of manuscripts submitted and published by women authors in recent years, with the figures now showing that 37 per cent of submissions and published articles for 2015 were by women authors. The number dropped slightly to 31 per cent for accepted articles.

We divide the world into four regions for our statistical purposes: the European Union, the Council of Europe countries outside the EU, the US and Canada, and the rest of the world. This may seem a little misleading as it indicates the place of submission – normally the institution at which authors work or study, rather than their actual nationality – but overall we believe it conveys a fairly reliable picture of our authors and EJIL’s presence in the world. Of the total number of manuscripts submitted in 2015, 44 per cent came from the EU, 8 per cent from CoE countries, 19 per cent from the US and Canada and 29 per cent from the rest of the world; thus, very similar figures to those of the previous year for the first two groups, whilst US and Canadian submissions showed a decline and rest of the world submissions increased. These percentages are closely reflected in the figures for published articles. Only 8 per cent of this year’s authors hail from the US and Canada, though the percentage of accepted articles by North Americans was much higher at 31 per cent. Thus, next year’s statistics may speak differently in this respect. Read the rest of this entry…

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