Four very different articles flesh out this second issue of our 21st volume. First is an article by Christopher Macleod on Crimes against Humanity. The Editors believe that our readers will enjoy this valuable philosophical account of the subject. Next is a detailed article by Marco Dani entitled, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’. Our third article by Monica Hakimi, ‘State Bystander Responsibility’, provides a fresh take on a much-discussed topic – offering a new generalized framework for conceptualizing the responsibilities of states for protecting persons from third party abuses. We have published several articles on this theme and will continue to do so for some time. It reflects our belief that we are in the midst of an important shift in the concept of State Responsibility. A shift from from primarily negative to positive obligations, from State Responsibility to the Responsibility of States. Neither state practice, nor the theoretical and conceptual contours of this shift have been sorted out. But EJIL is one place where the ‘basic science’ is taking shape. Hakimi’s paper suggests, inter alia, an important analogy between state bystander responsibility and our expectation that states respond to gender-based private acts of violence, an analogy we consider pertinent and illuminating. Last, we have an article by Santiago Villalpando which tackles the ever-important question of how we might conceive of an ‘international community’ and its status under international law.

International governance is another of our commitments rooted in the belief that it provides a more potent tool both analytically to understand and normatively to critique a host of international phenomena. Under this iteration of our occasional series, Critical Review of International Governance, we include pieces by colleagues in Ethiopia, China and Malaysia. First is a piece by Dereje Zeleke Mekonnen on the Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘Water Security’ paradigm. Second is an article by Kong Lingjie on data protection and transborder data flow in the European and global context. Last, we have a piece by Gurdial Singh Nijar entitled, ‘Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects’. We expect that you will find each piece both unique and also valuable to broader discussions on international governance.

Book Reviewing and Academic Freedom

My deep thanks for the hundreds of letters of support and indignation. All letters of support, including the many we received from editors of learned journals, have been translated into French and will be submitted to the Court. The Trial takes place on 25 June. I will report to our readers here on this blog.

Editor’s note: The hearing of the case has been postponed, for technical reasons, to January 20, 2011.

The Last Page 

In ‘The Last Page’, EJIL’s reminder that there is more to life than law, you will find a poem by Jake Marmer, entitled ‘When an Immigrant’.

The first wave, in the 1950s and ‘60s, was all about Community Rights and that new legal order. In the 1970s and ‘80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the ‘fundamental’ status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union’s 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe’s success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union’s Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.

Given history, it is not surprising why, say, Germany (the initiator of the Charter), German Institutions (e.g. the Constitutional Court of ‘So long as’ rhetorical fame) and Germans (viz. Merkel who has a double reason) are so fond of Rightspeak, whereas, say, the British are more pragmatic and matter-of-fact on the issue. And whilst it is important to remain ever vigilant blah blah blah, the truth is that in Europe The Individual does not suffer from a deficit of rights protection – certainly not of human rights protection. The never-ending rhetoric is all too often a mask for a veritable political deficit of individual empowerment in European democracy. Rights and Circus may be the apposite motto for the Turn-of-Millennium Europe: smother them with rights – which they don’t exactly need – and keep them quiet.

The principal positive effect of the combination of Rights and The Individual in the European legal order has not been the defence of the individual against some Barbarians intent on abusing his or her human rights. It has, instead, been that unprecedented strengthening of the Rule of Law among the Member States, a signal achievement worthy of celebration. (more…)

There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.

Independently of one’s view of the substantive result, the decision of the Second Chamber of the ECtHR is an embarrassment. There are few long-term issues on the European agenda that are more urgent, more complex and more delicate than the way we deal with the challenging problems of State and Church, religious minorities, the questions of collective identities of Europe and within Europe, and the parameters of uniformity and diversity of our states and within our states. All these issues are encapsulated in Lautsi. All are disposed of, Oracle like, in 11 impatient and apodictic paragraphs. Compare this to the 90 pages of the Supreme Court of the UK in the recent JFS Case, to give but one example.[1]

The European Court of Human Rights is not an Oracle. It is a dialogical partner with the Member States Parties to the Convention, and the legitimacy and persuasiveness of its decisions resides both in their quality and communicative power. The ECtHR is simultaneously reflective and constitutive of the European constitutional practices and norms. When there is a diverse constitutional practice among the Convention States – and there certainly is in this area – the Court needs to listen, not only preach, and to be seen to be listening. In this decision not only does it not engage with the rich jurisprudence, doctrine and practice to be found in many of the Member States, while blithely citing mostly its own decisions, it does not even address some of the issues raised by the defendant state. (more…)

We begin this issue with a symposium to honour one of our Founding Editors, Professor Antonio Cassese, who recently celebrated his 70th birthday. Many happy returns.  We publish five short pieces on the role that public international law plays and can play in the protection of individuals, a topic of abiding concern to Nino. From a variety of perspective our writers, Giorgio Gaja, Christian Tomuschat, Andrew Clapham, Luigi Condorelli and Francesco Francioni each provide tribute by providing insight in this particular area of international law.  We extend warm thanks to Paola Gaeta, an EJIL Editorial Board member, for Guest Editing this symposium.

In our articles section you will find a trenchant piece by B.S. Chimni – ‘Prolegomena to a Class Approach to International Law’ –with a distinct and challenging theoretical voice.  Next, we have an article by Mario Mendez entitled, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’, which suggests that a ‘twin-track’ approach to treaty enforcement is developing in the European Community.  We turn then to two pieces which engage with fresh questions concerning international humanitarian law.  We hope you will read these articles by Katherine Del Mar and Carlo Focarelli as logical extensions of the symposium in this issue.  Our final article by Roozbeh Baker addresses an ever fresh topic: ‘Customary International Law in the 21st Century: Old Challenges and New Debates’.

As part of our occasional series – Critical Review of International Governance – we publish a piece by Milagros Álvarez-Verdugo  which investigates the relationship between climate change and the Non-Proliferation Treaty. Life continues even after the Copenhagen farce.

In an earlier editorial, we encouraged review essays which cover a variety of texts on a single topic.  In this issue we include a good example of an insightful review essay by Lindsey Cameron and Rebecca Everly on territorial administration. 

The Last Page features a poem by Laura Coyne entitled ‘Market Fictions’ – food for the soul.

We are happy to announce that over the next few days Tolga Yalkin will be posting on EJIL:Talk! a series of pieces dealing with aspects of international investment law. Readers will remember that, last month, Tolga posted a piece on EJIL:Talk! titled “International Investment Arbitration: Poisoned at the Root?”  (which was discussed over at Opinio Juris)

Tolga is a graduate student at the Faculty of Law, University of Oxford and is the President of Oxford Pro Bono Publico, a public interest law program of the Oxford Law Faculty. His Oxford thesis considers the international minimum standard of treatment in international investment law.

Gaza – From Warfare to Lawfare.

For many years I taught a Seminar on the legal aspects of the Arab Israeli conflict at Harvard Law School. It was unlike any other of my courses or seminars. The participants, students and researchers, were more passionate and engaged than normal. As expected, there was always a group of passionate pro-Israelis (mostly but not exclusively Jewish). There was always a group of passionate pro-Arabs, or, at times it felt, anti-Israelis (mostly but, of course, not exclusively Jewish) Sure, they came to learn, but mostly how to sharpen the arguments for ‘their’ side in the conflict. “Lawfare” – the continuation of warfare through other means – well describes the gestalt. There were, of course, also a few  who came to learn, understand, disentangle myth from reality, sort out the facts and, normatively, seek a modicum of truth and justice in a conflict which often seems to pit right against right, and wrong against wrong. But not once did this latter group constitute a critical mass.

Law is so Janus-like: There is the advocacy face, especially in the Anglo-American tradition (in the development of which the importance of lay juries surely played a role), which passionately advocates for one side or another under  the problematic theory that adversarial arguments will lead to truth. But there is also the dispassionate face of law which privileges the disinterested, so-far-as-possible objective and clinical examination of fact and legal argument (and please, spare your breath, I, and most readers of this Journal, are all aware of indeterminacy, the conceptual and empirical problems with the notion of objectivity etc.)  There was a tug of war between these two approaches, but the first habitually crowded out the second. (more…)

In these days of easy travel and exotic holidays, children (at least of the European affluent) are often conceived in venues quite distant from their place of birth. Not only in biological life does conception precede gestation and birth. EJIL was conceived in the Fall of 1987 in, well, the Quadrangle of the Michigan Law School in a conversation between Bruno Simma and myself. Maybe it is not all that surprising. Not infrequentlydistance provides both perspective and clarity. It was time, we both agreed,that there was a European Journal of International Law . I am sure that, at least in my mind, part of the motivation was a certain rebellion at the dominance of the American Journal of International Law and dissatisfaction with the national context of the many (excellent) European international legal journals. As a life-long student of European integration I had only recently moved from Europe to the USA to take up Eric Stein’s Chair and having an EJIL seemed, well, so self-obvious it did not in fact require too much justification.

We became, shortly afterwards a Ménage à Cinq - joined as we were by Nino Cassese and Pierre-Marie Dupuy and our hard-working original Managing Editor, Renaud Dehousse. Philip Alston, an adopted EJIL child, became soon after an organic member of that original family. Gestation and birth quickly moved to Florence – where the European University Institute has provided a home to EJIL ever since.

Self-obvious or not, to launch the EJIL we had to draft a Statement of Intent (today, no doubt, it would have been called a Mission Statement). Rereading it today, as well as rereading the original Editorial which made liberal use of that Statement produces predictably ambivalent feelings and reactions. Be that as it may, publisher interest was keen and the Journal was launched to a rather sceptical world, not least the world of established national European International Law journals. 

Some of the features ‘ intended ‘ in that Statement fl ourished, others did not come to fruition and yet others shrivelled on the branch and dropped. EJIL started its life with two issues a year. It then moved to four issues and then even five. Starting with this issue, although we will maintain the overall annual number of pages printed, we will go back to four issues a year. We discovered in short order that the publication world does not like bilingual journals; we discovered, too, that our original idea of translating pieces was not only prohibitively expensive but unsatisfactory to author, translator and reader. Although French was dropped as the second language of the Journal, we have made great efforts over the years to help submissions written in English by non-native speakers. I think the results speak for themselves. We are very proud of our occasional series The European Tradition in International Law and you may expect more instalments. By contrast we have phased out most of the ‘ Services ‘ that we originally contemplated. In part, the practical difficulties of systematically maintaining surveys with a skeletal staff and unpaid Editors defeated us. But with the advent of the internet we ourselves have phased out some of these. As I have written in an earlier Editorial, the dynamics of ‘ staying current ‘ and debating recent developments have changed. It is not self-evident that the paper version of a journal is the best place to fulfil that function and maintain that conversation. I find myself increasingly writing to impatient authors: ‘ If your piece will be dated in two years, it fits uneasily the present editorial policy of EJIL. ‘

One of our most fateful decisions was not to cede ownership of the Journal to any publishing house. This, for example, enabled us to change our original publishers when we were not happy with their performance. It enables us to maintain an identity which is distinct from the large stables of publisher-owned journals. Our autonomously run website, www.ejil.org, was a pioneer in the field, and the availability free-of-charge of the entire EJIL on line, one year after publication, is another benefit of this independence. Of course, the family grows: we enjoy now a very vibrant Scientific Advisory Board whose members will, in intervals of three years, rotate through the Editorial Board. ESIL was conceived in the bosom of EJIL - a rib from its chest ( www.esil-sedi.eu) – and so of course is EJIL:Talk! our new Blog. (The recent string on events in Gaza is particularly worth a visit – sober and judicious in content and tone. see here, here, here and here )

In our very first Editorial we wrote:

Naturally, it is not the purpose of the Journal to revive a new ‘ Eurocentric ‘ tradition in international law. Whether a genuinely European approach does exist or what contours it may eventually take, remains to be seen. The Journal will not engage in any engineering in that direction. Contributions from scholars world-wide, gravitating towards the concerns of the Journal will be welcome.

I would be much less emphatic than I was 20 years ago in trying to describe, let alone define, a European approach to International Law. I suppose at that time we had to convince people about the need and utility of establishing this new Journal. I hope, even if I am a very biased ‘ parent ‘ , that by now no one regrets our Chutzpah of 20 years ago.

This is a time for celebration: We celebrate EJIL , its staff, contributors, subscribers and readers. But we are also acutely aware that we suffer from many shortcomings. We will be inviting suggestions for improvement from our readers on this blog and we will award a free subscription for one year to those whose suggestions are adopted.

EJIL at Twenty: The Anniversary Volume

 We will be marking our birthday with this special Anniversary Volume. You will, of course, have noticed the design change to our cover. A little bit like the design change to the Editorial Board – new fresh elements grafted on to the old and established … ! In each issue we will publish an ‘ Anniversary Article ‘ and an Anniversary Symposium.In conversation with the Board of Editors and Scientific Advisory Board, we decided to focus on some central themes where we think international law, and the study of international law, has seen some signifi cant changes over the last 20 years. International law and science is one such area and will feature in Issue 4, International law and globalization is another and will feature in Issue 3. If we had suggested these topics for a symposium 20 years ago, they would have seemed avant-garde. Today they are central. The symposium for Issue 2 will focus on aspects of the use of force. When EJIL was conceived we were still in the Cold War era! In this issue our symposium will examine some changing paradigms, in the law itself, in the world and in the scholarship of international law. We believe these symposia are a nice way to mark our anniversary. We also believe that every issue of EJIL is academically superb and intellectually exciting. There is, after all, a birthday every year, is there not?!

Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,¹ Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.² Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

(more…)

1. Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. [↩]
2. Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. [↩]