magnify
Home Archive for category "Editorials"

Christmas Reading? Christmas Gifts? Some Suggestions from the Editor-in-Chief

Published on December 19, 2014        Author: 

The following is not a ’10 Best Books Published in 2014’. Looking back at the books (excluding novels) I read (and in some cases re-read) this year I have picked those which created that ‘everyone should read this book’ urge that we all experience from time to time. The selection is of course entirely subjective, but rigorous in one sense: knowing how precious reading time is, involving serious opportunity costs, I put on the list only those titles where I felt that I would not run the risk that someone would write to me and say: you wasted my time.

The order of books on the list is arbitrary.

Moshe Halbertal, Maimonides: Life and Thought, Princeton: Princeton University Press, 2013

Of Maimonides it has been said endlessly that from [the great Biblical] Moses to Moses [Maimonides] no one has arisen as Moses. (Trust me, it sounds a lot better in pithy Hebrew – Momoshe ad Moshe Lo Kam KeMoshe). A son of Cordoba (1138) he spent the central part of his life in Cairo where he died in 1204 and was then buried in Tiberius. Renaissance Man (long before the Renaissance) he was and remains one of the greatest Jewish teachers, scholars, legal decisors, philosophers (in the Aristotelian tradition) and physicians. His codification of Jewish Law has remained normative till this day and his Guide to the Perplexed is part of the canon of medieval philosophy and is hugely rewarding to anyone today (all too few, alas) interested in virtue theory. The story of his life, an exile from Caliphate Andalusia and ending as physician to the Crown of Egypt, is not only riveting but offers a window to a world of, inter alia, Islamic glory, which is not often known beyond a small circle of scholars.  Read the rest of this entry…

Print Friendly
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part III

Published on November 10, 2014        Author: 

This is Part III of the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014. Parts I and II were published last week. The full version will be published in EJIL in a subsequent issue.

It is time to cry “Wolf” – since Europe finds itself with its basic, most fundamental, if often unstated, assumptions of security evaporating. Of course it would be fanciful, undesirable and unnecessary to imagine that the Pax Americana could be replaced by some form of Pax Europea. Unnecessary because the USA is not disappearing. But the evident  weakening of its constraining and restraining power — the Authoritativeness Deficit — has to be made somehow whole.

So what role for Europe? Surely it does not mean and should not mean that Europe would simply fill in the American gaps and play a slightly or significantly more sonorous second fiddle to the USA by, for example, making a heftier contribution to NATO. It means, in the first place, that Europe has seriously to reassess its own self understanding of its global responsibilities. Though this might seem a platitudinous and hence easy to achieve step, it is arguably the most difficult and crucial if, indeed, it is not to remain platitudinous and would represent a veritable shift in political consciousness.  In the second place it has seriously to upgrade its autonomous Global Authoritativeness, its own constraining and restraining power and from that, and in that, position interact with the USA and the rest of the world.  Not a superpower, but an indispensable power. It is a tall order but  setting for a moment politics aside, not an impossible one, since the actual toolkit does not need to be created ex nihili.

Sure, militarily, Europe’s credibility is risible, and has been so for long. Think Bosnia and Kosovo, think even Libya. But it is in the paradoxical position that militarily, the European whole is smaller than the sum of the parts. This well known paradox, the result of national interests, jealousies, pride, inertia not to say pettiness, is startling, but it is also a silver lining since there is a huge amount of already existing capacity simply terribly badly utlized. Europe’s economic clout, as a trading bloc, is second to none, greater than most and potentially a formidable tool of foreign policy and security, glimmers of which could be witnessed as Europe finally began to get its act together in the Ukraine crisis, but therein lies the rub – its ability to get its act together. Politically, too, one does not start from zero. United (when it is) in its rich diversity offers a veritable European foreign policy an interesting, even unique potential of foreign action utilizing historical ties and connections of its various Member States as points of entry, bridge and alliance building towards friend and foe alike and the ability to converse with nuance and in multiple political idioms. Morally, both nationally and in the form of the European Union Europe has effectively shed its colonial baggage and it does not carry nearly the weight of suspicion with which US foreign policy is encumbered. Effectively melded together and used with the kind of adroitness which some of the individual Member States are renowned for, simply underscores the potential of existing capacities even before any serious upgrading is to take place. One is not starting from Zero. Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL, European Union
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part II

Published on November 6, 2014        Author: 

This is Part II of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part I was published yesterday. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

Though one could call into question the wisdom or propriety of a whole variety of American actions of the past century, there was a justified sense that America was a guarantor of a kind of stability. In the most primitive sense this was the Pax Americana.

No more. There are, of course, no sharp temporal lines – an assassination in Sarajevo was a signpost, not a real cause. Still, 2014 is in contention to be judged by history as the watershed period, the culmination of a structural process signaling the demise of the Pax Americana.

We might think that we have been here before: Periods of American economic crisis, isolationism and lack of nerve have come and gone during the last hundred years. But my argument is that the current circumstance is different, at least in two unprecedented (if connected) ways.

First, we are actually not experiencing today American Isolationism and withdrawal, quite the contrary. In some respects we are witnessing heightened American engagement: Resetting relations with Russia, the Turn to Asia, frenetic efforts in the Israel-Palestinian context, direct and indirect activity surrounding events in Egypt and elsewhere in the Arab Spring, the pre withdrawal Surge in Iraq and ongoing commitment in Afghanistan and now with ISIS, the determined cultivation of Turkey, vocal diplomacy as regards sanctions against the Ukraine, the TTIP as a strategic asset, constructive and cooperative American involvement in the Trade Facilitation Agreement and a renewed interest in Africa to mention but some aspects of contemporary US foreign engagement.

What is different is the cumulative impression of loss of American constraining power and influence. There is a growing discrepancy between engagement and results. Just go down list: Relations with Russia are at Cold War levels without the containment effect; Chinese bellicose posture vis-à-vis  Japan and in the South China Sea are at a level one would not have imagined a mere decade ago; the US clamorous humiliations (no other word is strong enough) in reigniting the Israeli-Palestinian Peace Process and having any impact whatsoever on the bloody Gaza conflagrations; relations with Egypt far more complex than ever before; the collapse in Libya and general American impotence to predict or shape the post Spring events; Iraq in disarray with America scurrying to seek alliances with yesteryear’s enemies in the face of the true Syrian debacle (and a no-one-dare-to-say-what-just-about-everyone-is-thinking: the good-old-days-of-the-secular-Saddam-regime); the American would-be and well deserved dividend in Afghanistan all but written off; a Turkey in which America has lost even the semblance of an ally; the inability of the US to have a united front with the EU on sanctions – it took the Malaysia airline catastrophe to bring Europe around, not American pressure; the TTIP in the doldrums its requiem quietly being composed; the collapse (temporary one hopes) of the Bali Trade Facilitation Agreement (itself a fig leaf to the failed Doha) at the hands of India, American pressure and diplomacy notwithstanding; and America in Africa? How do you spell that in Chinese? Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part I

Published on November 5, 2014        Author: 

This is Part I of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part II will be published tomorrow. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

I think it is difficult to contest that the most important State player in world affairs over the last one hundred years – and consistently so over this period — has been the United States of America. WWI – into which, to use Christopher Clark’s justly celebrated book, we Sleepwalked – marks a useful starting point. It is not only the fairly important  role America played in bringing  WWI to an end that signals the beginning of this era but the no less important role it played in shaping the aftermath. Wilson’s 14 points were considered at the time “idealist” by some of the “Old Powers.” But by dismantling the Ottoman Empire through the principle of Self Determination (not at that time a universal legally binding norm) the scene was set for the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the second half of the Century. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights in the wake of WWII – two lynchpins of our current world order.

That opening gambit to the American century is emblematic of  the entire Pax Americana epoch: American action in the international sphere has frequently been driven by a strong dose of idealism (to be sure sometimes misguided) mixed in with the normal self-interest which is the usual stuff of international relations.

I know that the various schools of ‘Realism’ tend to pooh-pooh any deviation from interest analysis in international relations. Generally speaking I find the emphasis on interest/power as an explanatory device to human affairs, to the exclusion of almost all other motivations, as laughably reductionist in international affairs as it is in other domains of human action. At its extreme it is rooted in a vision which denies in principle the possibility of altruism, a position which makes a mockery of the tragic complexity of the human condition. This is as true, even if to some both counter intuitive and discomforting, in the case of the conduct of American foreign policy.

There may be an irony in using the expression Pax Americana.  Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL
 

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…

Print Friendly
 

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.

Print Friendly
Filed under: Editorials, EJIL
 

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…

Print Friendly
Filed under: Editorials, EJIL
 

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…

Print Friendly
Filed under: Editorials, EJIL
 

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.

Print Friendly
Filed under: Editorials, EJIL
 
 Share on Facebook Share on Twitter
Comments Off

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…

Print Friendly
Filed under: Editorials, EJIL
 
 Share on Facebook Share on Twitter
Comments Off