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Home Archive for category "Editorials"

To Juncker or Not to Juncker – Is That the Question?

Published on June 26, 2014        Author: 

(Excerpt from the forthcoming Editorial of EJIL 25:2)

Far beyond the question of whether or not Council should feel obligated, or should even if not obligated, to select as President of the Commission the Lead Candidate of the largest party in the European Parliament, is a far more profound issue: should the President of the Commission be ‘Political but not Partisan’ (the Barroso thesis) or should voter preference in choosing not only this or that President but this or that party (with an ideological line) be translated into the policies espoused by the President of the Commission and indeed the Commission itself.

Strange as it may seem, it appears that this issue was not addressed with real seriousness even within Parliament itself and has not been a central part of the debate about the selection of the next President even on the eve of the Summit. David Cameron has (for the most part) based his objection on the specific political convictions (as he sees them) of Juncker as regards the future of the Union and not to the potential sea change which the Lead Candidate exercise potentially ushers.

But first, is Council really obligated to follow the election results in this manner?

I think the argument based on Article 17 TEU that the European Council is obligated to follow the Parliamentary choice is overstated both as a matter of law and as a matter of politics.

Read the rest of this entry…

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The International Society for Public Law – Call for Papers and Panels

Published on April 4, 2014        Author: 

On 26-28 June 2014, in Florence, the European University Institute and NYU-La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON•S).

We invite all our readers to submit proposals for either individual papers, or even more ambitiously, proposals for panels which, if selected, will be presented at the Inaugural Conference. Full details, modules for submitting proposals and for registering for the conference may be found at the society’s website. Registration for the Inaugural Conference includes the first annual membership fee in ICON•S and a free one-year online subscription to ICON, the International Journal of Constitutional Law.

  • Why create a new international learned society – are there not enough already?
  • Why public law – if we typically teach Constitutional Law, Administrative Law, or International Law (and now the much à la mode Global Law)?
  • And why does the word “comparative” not feature in the title of the new Society? Surely if we bring together constitutionalists from, say, Japan and Canada or administrative lawyers from Italy and Turkey – their common language will be Comparative Law?

The initiative to create an International Society of Public Law emerged from the Editorial Board of I•CON – the International Journal of Constitutional Law. For several years now I•CON has been, both by choice and pursuant to the cartographic reality of the field, much more than a journal of comparative constitutional Law. I•CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered, to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also – and increasingly so – scholarship that reflects both legal reality and academic perception; scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. That kind of remapping of the field is apparent also in EJIL. Its focus remains of course international law, but the meaning of international law today will often include many elements of the above. Read the rest of this entry…

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Van Gend en Loos – 50th Anniversary

Published on April 3, 2014        Author: 

Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to ‘celebrate’ Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of papers which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.

This symposium illustrates, if an illustration were needed, the rationale that underlies the creation of the new International Society for Public Law. It also marks a publishing innovation for us: there is a single Table of Contents of the Symposium in EJIL and I•CON. But the articles are split between the two journals. It was not always easy to decide which should be published in either journal but this joint venture enabled us to bring to print a larger than usual symposium.

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Vital Statistics

Published on April 2, 2014        Author: 

It is my custom to publish in the first issue of the year some of our vital statistics for the year ending. One particular vital statistic concerns the number of downloads of EJIL articles in any given year. To be clear, we measure the number of downloads of all EJIL articles, not just those published in the year in question. The latest stats we have are from 2012, which saw 512,000 downloads. It is up from 400,000 or so in the previous year. It is an astonishing figure provided by OUP and I asked that it be audited. They stand by their figure. The large number is explained by two factors: a sizeable number of EJIL articles are used in classrooms and in course packs and reading lists – resulting in thousands of downloads around the world by students. And of course our ‘near’ open-access policy, whereby all articles more than a year old become part of our free archive, is another critical factor. Be that as it may, if you publish in EJIL you are likely to be read and often used in the classroom; if you read EJIL, you are in good, if crowded, company (unless you have the habit of downloading and not reading – certainly cheaper than photocopying and not reading).

I have already expressed my scepticism of the various ‘bibliometrics’ of journals in an earlier Editorial (23 EJIL (2012) no. 3) I find the much touted ‘impact factor’ most laughable, skewed as it is by the number of articles you publish per annum – the fewer, the better you are likely to do. We get penalized by our large number of shorter pieces – debates, reactions, critical jurisprudence and critical governance rubrics and the like. Much more significant would be the number of citations. This is not laughable but still earns my chagrin since the databases are so skewed in this instance towards the American domestic legal journal market and ignore for the most part citations in non-English language journals. No sour grapes here: we do very well regardless.

Various outfits run these stats. I believe the most serious and intelligent is that put out by Washington and Lee University in the United States, as a service to authors trying to choose publication venues which will give most exposure to their articles. It explains the vagaries of Impact Factor and offers a ‘combined’ score of citations (66%) and ‘impact factor’ (33%). In its class (specialized, refereed) EJIL is number one among non-USA legal journals. In overall ranking (US and Non-USA) it ranks 4th in terms of citation and 10th in its combined score. (Ohio State Journal of Criminal Law – a very worthy journal, used I imagine by a zillion American criminal lawyers, ranks as number 9 – you get the point). Read the rest of this entry…

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Roll of Honour

Published on April 1, 2014        Author: 

We wish to thank the following colleagues who generously gave their time and energy to EJIL as external reviewers in 2013. Naturally, this does list does not include the dedicated members of our Editorial Boards and our Associate Editor.

Philip Alston, Antony Anghie, Helmut Aust, Asli Bali, Lorand Bartels, Tim Buthe, Graeme Dinwoodie, Abby Deshman, George Downs, Angelina Fisher, Mónica García-Salmones Rovira, Richard Gardiner, Bryant Garth, Matthias Goldmann, Peter Goodrich, Andrew Guzman, Laurence Helfer, Robert Howse, Ian Johnstone,  Jan Klabbers, Jan Komarek, Martti Koskenniemi, David Kretzmer, Dino Kritsiotis, Nico Krisch, Jürgen Kurtz, Brian Lepard, George Letsas, David Luban, Christopher MacLeod, Lauri Mälksoo, David Malone, Carrie Menkel-Meadow, Frédéric Mégret, Tzvika Nissel, Angelika Nussberger, Sergio Puig, Donald Regan, Stephen Schill, Gregory Shaffer, Thomas Skouteris, Anna Sodersten, Alan Sykes, Michael Waibel, Steven Wheatley

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Quantitative Empirical International Legal Scholarship

Published on April 1, 2014        Author: 

Wearing my hat of Editor-in-Chief offers occasionally a better vantage point to spot trends compared to the reader of individual issues. One has the pipeline in view as well as the huge number of articles which are submitted and which we are unable to publish. One distinct trend is the increased number of articles submitted making use of quantitative data and analysis. In this issue we publish Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter’, with a Reply by Erik Voeten. In the pipeline are articles by Sergio Puig, ‘Social Capital in the Arbitration Market’ (watch out for this one – it will resonate, I am sure); Cecily Rose and Shashank Kumar, ‘A Study of Lawyers Appearing before the International Court of Justice, 1999-2012’; and Thomas Schultz and Cédric Dupont, ‘Investment Arbitration: Promoting the Rule of Law or Over-Empowering Investors? A Quantitative Empirical Study’. And these are just a few of many more that have been submitted. Time will tell whether this becomes a regular ‘thick’ part of international legal scholarship.

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EJIL Vol. 25, Issue I: In this Issue

Published on March 31, 2014        Author: 

Even aside from the joint EJIL-I•CON Symposium marking the 50th anniversary of the seminal Van Gend en Loos decision, this issue offers a cornucopia of innovative scholarship on international law. We start by introducing a new rubric, EJIL: Keynote!, under which we intend to publish especially noteworthy conference presentations and other public addresses. In the first lecture to be published under this rubric, Sir Daniel Bethlehem argues that the traditional ‘geography of statehood’ is of decreasing importance in the face of new global flows  ̶  of information, capital, goods, services, and people. Combining the new rubric with the well-established EJIL: Debate! format, David S. Koller and Carl Landauer offer two Replies that will certainly stimulate further reflections on continuity and change in the relationship between geography and international law.

The two articles that follow demonstrate, once again, EJIL’s commitment to giving equal attention to both theoretical and doctrinal aspects of international law. Maria Aristodemou’s article applies the insights and techniques of Lacanian psychoanalysis to public international law itself, appraising the latter as a thoroughly neurotic discipline; animated, challenging and droll, this piece will be required reading for anyone interested in keeping pace with the cutting edge of international legal theory. Christopher Wadlow’s article, by contrast, addresses a series of relatively specific problems arising under the TRIPS Agreement, of a conceptual and doctrinal nature. We think both are excellent in their respective genres.

Following our symposium revisiting Van Gend en Loos, Roaming Charges returns to Moments of Dignity, with a photograph of a pre-wedding moment in Peking.

In a further entry under our EJIL: Debate! rubric, we have, as mentioned,  an article by Dia Anagnostou and Alina Mungiu-Pippidi which examines the domestic implementation of rulings by the European Court of Human Rights in nine states, concluding that the main obstacles to compliance can be found in domestic policy process, legal infrastructure, and institutional capacity. Eric Voeten’s Reply engages with Anagnostou and Mungiu-Pippidi on methodological grounds, showing how the application of more sophisticated statistical methods to a more extensive data-set might produce more nuanced substantive conclusions. Together, these two pieces indeed provide compelling evidence of the growing interest in—and potential insights to be gained from—empirical, numerical and statistical studies in international law.

In our occasional series, Critical Review of International Governance, Rosa Freedman tackles the controversy over the role of the United Nations in causing the recent cholera outbreak in Haiti, exploring whether a human rights-based challenge to the UN’s immunity may be mounted.

The Last Page in this issue presents a poem entitled Bhopal, by Keith Ekiss.

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Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate)

Published on December 13, 2013        Author: 

When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment ̶ Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence.  Naulilaa represents their real deep structure.

There are many ways to explain the seeming impossibility to definitively rid the system of the Naulilaa ethos. On the one hand Naulilaa represents, as I have suggested, a clear challenge to the Charter’s focus on self-defence as the principal, perhaps only, moral justification for the legitimate use of force by individual states. At the same time, it also reflects a deep human repugnance in the face of crimes going unpunished. The unresolvable debate concerning the very appropriateness and the place of retribution (not explained away as deterrent) in theories of punishment is the domestic equivalent of this tension in international law. Read the rest of this entry…

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House-keeping: Anonymity

Published on December 12, 2013        Author: 

Both EJIL and and EJIL: Talk! are venues for scholarly exchange where the norm is that scholars take responsibility for their submissions, use their real credentials and do not hide behind a pseudonym. In the case of EJIL: Talk! this is part of our policy of maintaining a sober, respectful and courteous tone, even in cases of critical comment. It has been our experience that anonymous comments have at times violated our ‘sobriety’ policy and have had to be removed.

On rare occasions anonymity may be justified  ̶  such as a submission from a jurisdiction which does not respect freedom of expression. An author who seeks to publish, post or comment anonymously should contact the Editor-in-Chief of EJIL or one of the Editors of EJIL: Talk! before submitting a manuscript to the Journal or a post or comment to the blog. The Editors will give due consideration to any request for anonymity.

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EJIL Vol. 24:4–In this Issue

Published on December 12, 2013        Author: 

We open this issue with two articles addressing the changing relationships between states and international organizations in contemporary international law. Andrew Guzman argues that the fear of creating a ‘Frankenstein’s monster’ explains the current overall configuration of international institutions and the distribution of activities between them. Describing the various categories of activity carried out by international organizations, Guzman concludes that the ‘Frankenstein problem’ has made states overly cautious in endowing international organizations with the powers needed to effectively tackle international issues. In an article that provides a nice complement to Guzman’s analysis, Geraldo Vidigal-Neto examines the important issue of the ability of WTO members to amend their WTO obligations through bilateral arrangements that effectively legislate regarding the interpretation of WTO law inter se, situating this phenomenon within the range of possible ways in which the content of WTO law can be altered.

This issue’s symposium on the International Law Commission’s recent Guide to Practice on Reservations to Treaties reaffirms EJIL’s commitment to the study of international legal doctrine. EJIL is as much a Law Journal as a Journal about the Law. An introduction to the symposium by Marko Milanovic and Linos-Alexander Sicilianos is followed by a ‘General Presentation’ of the Guide to Practice by the Special Rapporteur, Alain Pellet. Three additional articles, by Michael Wood, Daniel Müller, and Ineta Ziemele and Lasma Liede, explore different aspects of the Guide to Practice and reservations to treaties generally.

In Roaming Charges, we feature Places of Destruction and Rebirth, with a photograph of a remnant of the Kraków Ghetto Wall.

Two more entries in this issue under our rubric EJIL: Debate! provide occasions for the kind of spirited discussion of international legal issues that we encourage in the Journal. An article by Andrew Williams assesses the case against the European Convention on Human Rights, including the ‘heretical’ proposition that the Convention has failed human rights conceptually and should be done away with. In his Reply, Stelios Andreadakis defends the Convention and argues that the flaws identified by Andrew Williams are far from fatal. The second EJIL: Debate! in this issue continues a conversation that began with an article by Abigail Deshman in issue 22:4, on the phenomenon of horizontal review between international organizations, the Council of Europe and World Health Organization. Rosa Raffaelli argues that a number of additional reasons, not noted by Deshman, can explain the behaviour of the two parliamentary bodies in these organizations. Read the rest of this entry…

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