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’.

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. It occurred in the epoch of the first wave of economic Community rights and the engine for this accidental revolution was the harnessing of judicially enforceable rights to individual self-interest (the ‘Private Attorney General’ model of legal enforcement) coupled with the genius of the Preliminary Reference procedure which put the elevated compliance-pull of domestic courts vis-à-vis their own governments at the service of the Union. I say ‘accidental revolution’ since the anecdotal evidence we have would suggest that in transposing an internal Italo-German domestic constitutional arrangement to the Community legal order during the negotiations of the Treaty of Rome no one had anticipated the transformative and revolutionary effect it would have. Unless, that is, the new and exciting generation of European Union legal historians such as the Danish scholar Morten Rasmussen (Google him and his fellow historians’ work – you will be richly rewarded) will prove one wrong on this too.

But all shining moons have a dark side too, and so does the love affair with The Individual and Rights and it is to be found in the realm of political culture. The Citizenship clause is telling. In bestowing European Citizenship on all Member State nationals it subjects them to all the rights and duties to follow. But when one peruses the list that follows, duties somehow evaporate. European citizenship is a category which comes with rights but no active (or even passive) duties. The Union does indeed place the individual in the centre, but at one and the same time puts into place a political culture which cultivates self-centred individuals.

There is more. It is not simply the corrupting asymmetry of rights without civic duties, but ours is a political culture which, likewise, cultivates a rejection of responsibility both for one’s collective circumstance and a responsibility towards the Other. I am sure that many readers will remonstrate at this point: are we not the Europe of solidarity? Chez nous, after all, the scandal of 30 million without health insurance could not happen? The answer is Yes and No. Ours is a peculiar solidarity – Agency Solidarity, solidarity through the disembodied voice of public authority, solidarity through government. It is the prominence of Subsidiarity in our political vocabulary that tells the tale in this case. A laudable concept – Government and governance should presumptively be exercised at the level closest to those affected by it (the stakeholder principle) unless compelling reasons of efficiency and/or externalities justify a higher, more remote, exercise of power. But nota bene: the responsibility is always that of some public authority. Our role is dutifully to pay our taxes – I suppose that is a civic duty, though one found in the vilest of dictatorships too, so not one that distinguishes democracies – and expect the appropriate public authority to do the bidding on our behalf. It is a solidarity in which the individual is insulated from its subject. It is a solidarity which allows us to read a report on some violation of rights somewhere over our breakfast coffee and wax indignant about why the government, some government, is not doing something about it. It is a solidarity strangely bereft of the actual personal experience of solidarity. It is a solidarity which equally strangely allows us, at the individual level, to abdicate responsibility for and towards its subjects. The low rates of voluntarism and charitable giving in Europe are notorious – and let’s not excuse ourselves with the alibi of high rates of taxes.

Monnet famously preached Nous ne coalisons pas des Etats, nous unissons des hommes. One would think, and many still do, that the culture of The Individual and Rights is the perfect legal expression of that aphorism. Turns out that the opposite is true. Self-interested individuals armed with judicially enforceable rights help explain the remarkable success of the Union in coalescing states and radically changing the depth and seriousness of their mutual legal commitments. It also explains the oft abject failure of the noble socio-human dimension of the Monnet motto. Examples? Overcome the collective amnesia and recall the genocide in Bosnia, against a religious minority, for the second time in the heart of Europe. What excuse do we plead this time round for that display of solidarity? Or consider the solidarity expressed in the atavistic and ugly reaction to the ‘hordes’ of migrant workers from the East following the recent Enlargement.

But it is the recent Greek saga which provides the most sorrowful illustration, the veritable sour grapes, of a political culture besotted with The Individual and with Rights. First we have a display of monumental individual tax evasion and free riding. The individual was certainly at the centre there. And a labour market in which connection to friends and family is the typical key for employment in a bloated public service. And entitlements which make even the Swedes blush. Then, when the free lunch comes to an end, broad and violent protests begin, employing, of course, the language of rights and their unfair denial – the unfair denial of the right to a pension at over 90 per cent of one’s full salary. You kill your mother and father and then you plead – Mercy, I’m an orphan. And, as for responsibility for the crisis, this is laid with everyone except one’s self. Speculators, Wall Street and the Americans (often used today the way ‘the Jews’ were used yesteryear for all manner of financial irregularity), ‘Anglo-Saxon market culture’, but above all it is ‘them’, The Government, which is responsible. One’s own government. This is what happens, in its birth place, when democracy is associated predomintantly with rights, and not with civic duty and responsibility. When one cannot internalize that in democracy, them is actually us. In a culture which always assigns responsibility to others, this reaction was predictable. Predictably demoralizing.

The Greek crisis also provided a nice lesson in solidarity towards the periphery. Governments acted with responsibility, but at the individual level – read Bild. Make no mistake – I single out Greece and Germany only because the saga played itself in sharpest relief in these two states and societies, but the sentiments and pathologies were widespread, are widespread.

Curious business European Integration Rights and all: Nous coalisons des Etats, nous n’unissons pas des hommes.

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.

The Decision of the Chamber is undergirded by the following breathtaking understanding of the Convention system in matters of Church and State: ‘[t]he duty of neutrality and impartiality of the state is incompatible with any judgment on its part of the legitimacy of religious beliefs or ways of expressing them’ (Recital 47(e)).

The mind simply boggles. What, for example, of a Britain, with its established Church, in which the Monarch is not only the Head of State but the Head of the Church of England, in which schoolchildren might be invited to sing the national anthem (God (oy vey) Save the Queen). Is that very constitutional structure of an Established Church not some kind of judgment that in some way at least Anglicanism is not illegitimate?  Would the UK ever be able to comply with this norm? Is the Court intimating that Britain is to become a France on this issue? May Irish schools no longer teach the Irish Constitution to schoolchildren because the Constitution endorses expressis verbis in its Preamble the Holy Trinity? Must Denmark, like Sweden, abandon Lutheranism as the official Danish Church or hide this fact from its children? One could cite endless other examples. Can one have an established church, or an endorsed church, or a supported church, or a privileged church (one of the many modalities of the non-laique group of states who are, pace the Chamber, still part of Europe), as one does in so many European states, which does not, at a minimum, impinge on the issue of legitimacy of religious beliefs as the Court seems to say no state may?

What is so interesting about the European constitutional doctrinal landscape is that whilst insisting on Freedom of Religion and Freedom from Religion, it allows a rich diversity in the constitutional iconography of the state and different forms of entanglement of religion in its public life: from fully established churches to endorsed churches to cooperative arrangements as well as, of course, to states in which laïcité is part of the definition of the state, as in France.

It is not possible to establish a hermetic border between the symbology of the state which may be religiously imbued and the positive asset of its constitutional law which must respect freedom from religion any more than it is impossible to prevent some spillover from, say, the French laique self-understanding into the classroom. When one prohibits all religious dress in school, rather than allowing all religious dress, is one not making some kind of statement on religious belief?

How one draws the line between the identitarian aspects of the state which might have religious elements and the need for an education which is free and not religiously coercive is an important and delicate issue. But you cannot even begin to draw that line if you do not acknowledge that in Europe there is such a line to be drawn. These issues were raised in the pleadings, but find no echo at all in the decision. 

This is not merely a formal critique of the Chamber’s failure to understand the doctrinal and conceptual field in which this decision is situated. The European landscape which accepts as legitimate a UK and a France, a Malta or Greece or Ireland as well as an Italy, is a unique and uniquely promising model of tolerance and pluralism. You would not guess such from the decision of the Court. The rhetoric of this decision, its underlying sensibility, its omission to acknowledge these distinctions, would be understandable if it were penned by the French Constitutional Council or, for that matter, the US Supreme Court. But not from the ECtHR.

What, then, of the actual holding? In some way the Government of Italy raised the white flag of surrender even before the Court issued its decision by relying exclusively on the argument that the school crucifix was little more than a cultural symbol that transcended or marginalized its original or outwardly religious significance. Still, their argument was not specious. The cross in the ‘Red Cross’ we see on ambulances or in the battlefield are accepted as a symbol of human value that has long lost its identification  with the Christian tradition. And the same is true for the cross which is to be found in many national flags. But context does matter and I think that the Court was right to reject this argument in the context of the classroom. This is especially so when, as is so often the case, the cross in the classroom is not the ‘logo-ized’ simple cross but a veritable crucifix with the body of Christ. But even had Italy won on this argument, it would, in my eyes, have been a pyrrhic victory. In the cultural, social and political circumstance of Europe today one does not want to win on such ground – because it implies that if a symbol still maintains its religious significance, it has no place in the public square. That cannot be a correct reflection of the European constitutional sensibility.

The Court was right to emphasize that the Convention provisions in question should be interpreted in the light of the objective of educating towards a democracy which instils the values of pluralism and tolerance. It is also right to emphasize that in our understanding of Religious Freedom one must emphasize both the positive (Freedom of Religion) and the negative (Freedom from Religion). We may, too, accept its ruling that in the classroom the Crucifix may have a plurality of meanings, but its predominant one is religious. And we may even accept its premise that what the public authority puts on the walls of its schools has an educational impact, at a minimum by validating or invalidating certain world views. 

Does all this lead ineluctably to the conclusion that the Crucifix, as a religious symbol, has no place in the school? It is here that things require very careful and close attention and where we meet the most disappointing aspect of this decision: its failure seriously to grapple – except in ‘knee jerk’ fashion – with the new circumstance of Europe in which these issues suddenly seem pressing.

In a multicultural society, where the principal cleavages are among different religions or different religious denominations, a display in the public school attended by, say, Christians, Jews and Muslims, of the crucifix could be seen as educationally coercive. The remedy in this scenario might be either to remove the crucifix, validating no religion, or to add, as appropriate, say the crescent and the Star of David, validating all equally. One might think that the second option is better since, if handled appropriately, it would offer more hope of teaching a positive lesson of mutual respect and tolerance – especially when one is faced with a majority religion that is not in need of validation and others that are subject to suspicion or scorn. The effect of a naked wall, and a wall which displays all symbols, though formally equal in its neutrality, is educationally very different.

But the Europe of today is not such a multicultural society. In many of our states, the cleavage between, say, religious Catholics, Jews and Muslims, is far smaller than between the ‘faithful’ (whether Jews or Christians or Muslims) and the ‘secular’. Laïcité  is not an empty category which signifies absence of faith. It is often, as in this case, a rich world view, a position of conscience. It is not an indifference to religion. The secularist would find the crucifix as offensive as might the Jew or Muslim. Having on the wall a crucifix, a crescent and a Star of David would be to someone for whom a secular world view was not just a description of absence of religious faith, but a ‘faith’ in its own right, triply offensive.

So what of a naked wall? Easy solution?

Consider the following parable of Marco and Leonardo, two friends just about to start a new school An exciting moment. They live in a place like Abano Terme, the locale where Ms Lautsi lived. Leonardo visits Marco for the first time at his home. He enters and notices a crucifix on the wall at the entrance. ‘What is that?’, he asks. ‘A crucifix – why, you don’t have one? Every house should have one.’ Leonardo returns to his home agitated. His mother patiently explains: ‘They are believing Catholics. We respect them and their beliefs.’ (Or, we don’t believe in such stuff, but we respect their right to believe etc.) ‘Can we have one on our wall?’ ‘No’ would surely be the answer of a firm and decided mother like Ms. Lautsi. And rightly so. It is a secular world view that she wants to impart to her children. Now imagine a visit by Marco to Leonardo’s house. ‘Wow!’, he exclaims, ‘no crucifix? An empty wall?’ He returns agitated to his house. ‘Well’, explains his mother, ‘they are a wonderful family, good and kind and charitable. But they do not share our belief in the Saviour. We respect them.’ ‘So can we remove our crucifix?’ ‘Of course not. We respect them, but for us it is unthinkable to have a house without a crucifix.’ The next day both kids go to school. Imagine the school with a crucifix. Leonardo returns home agitated: ‘The school is like Marco’s house. Are you sure, Mamma, that it is okay not to have a crucifix?’ That is the essence of Ms. Lausti’s complaint. But imagine, too, that on the first day the walls are naked. Marco returns home agitated. ‘The school is like Leonardo’s house,’ he cries. ‘You see, I told you we don’t need it.’ And even more alarming would be the situation if the crucifixes, always there, suddenly were removed.

In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option.  Some countries, like the Netherlands and the UK, understand better the dilemma. The state there is more serious in trying to be neutral or agnostic in the educational area. It funds secular schools and, on an equal footing, religious schools. It is a system that has clear advantages in allowing parents to give the kind of education they choose for their children with equal funding by the state – though, of course, respecting a certain core of civic content. It ensures freedom of religion, in that critical area of education, and allows freedom from religion on an equal footing. It is an option which, apparently, is not available under the Italian Constitution. In any event, I think that there is something noble and educationally challenging in having all kids in the same public school and learning to respect each other in the rich diversity which characterizes our societies. But in the conditions of our societies, the naked public square, the naked wall in the school, is decidedly not a neutral position, which seems to be at the root of the reasoning of the Court. It is no more neutral than having a crucifix on the wall. It is a disingenuous secular canard, the opposite of pluralism, which has to be dispelled once and for all if we are serious about teaching our children, religious and secular, Christian, Muslim and Jew, to live as a harmonious society in mutual respect. Further, to say that the cross is predominantly religious does not mean that it is only that and that Italian history and identity started with, say the French Revolution. Is one to revoke from the public space one’s symbols as if ‘contaminated’ by their religious content? Change the British National Anthem? Amend the first phrase of the German Constitution? On the other hand, the Italian government cannot credibly simply insist on the status quo ante under the unconvincing legal stratagem that the crucifix is nothing more than, or predominantly, a cultural icon. That is nonsense and even committed Christians should rebel against such a reductionist notion of the Christian principal religious icon.

What then should the Court do? It has every right and duty to impose an obligation on states to ensure that their public schools are not a place which is religiously coercive. (Militant atheism is also religiously coercive.) But there is no ‘One Size Fits All’ manner in which this can be achieved. It depends on demographics, tradition, and creative educational solutions.

In every context in which this becomes an issue, public authorities, educational experts, representatives of the different social forces must engage in a conversation of the best means to ensure a school precinct and classroom that will positively show respect for different religions, and not hide them away, as well as equal respect for the secular Weltanschauung. It may require the removal of all crucifixes, of some crucifixes, of none at all. It may require the addition of other religious symbols. It may require a school precinct which reflects the pluralism of society – some rooms with, some rooms without, etc. I am sure that those whose field is education can come up with creative, differentiated solutions – not only lawyers are creative.

By this reasoning, Ms. Lautsi is perhaps entitled to her damages because the Italian government failed to demonstrate that the use of religious symbology in its classroom was part of a credible programme of education for tolerance and mutual respect. It is that which should be the guideline and constitutional imperative of contemporary Europe. 

[1] Length does not ensure necessarily a good decision as that very decision of the Supreme Court proves. But reasoning, even if misguided, is preferable to oracular commands. For a critique of the JFS decision see http://www.jewishreviewofbooks.com/publications/detail/discrimination-and-identity-in-london-the-jewish-free-school-case.

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.

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.

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.

The seminar took a traditional, doctrinal orientation – perhaps a didactic error. The various legal issues starting with the Conflict’s modern genesis in WWI onwards were identified. Balfour Declaration, Mandate, UN Partition Resolution, the status of the Jewish People (and later the status of the Palestinians) the Birth of Israel, infiltration, reprisals, Sinai 1956, 1967 — anticipatory self-defense, blockade,  et cetera et cetera.  Ad nauseam and ad tedium one would be tempted to say if it were not for the rancid odor of blood which constituted the reality behind the legal issues. Who was (legally) right? Who was (legally) wrong was “mooted” from week to week as if in a court of law. Sure, we did contextualize, examine the social and anthropological; we tried to understand the evolution and biases of international legal processes through the prism of the Conflict. But it was the doctrinal stuff, the “right and wrong”, “lawful and unlawful” which held the students in thrall. Black and white were the favorite colours, grey had few takers. And it was, I always felt, the desire to blacken the other that was most important. “They” are awful, “their” actions terrible – and of course, illegal; not simply illegal but criminal; not simple crimes, but war crimes; even worse, Genocidal!

Perforce the seminar had an historiographical dimension as the structure and content of the “lawfare” changed over the decades – some times in most amusing ways: For example, an earlier generation of Arab legal literature passionately contended that the UN GA Partition Resolution (seen erroneously as ‘creating’ the State of Israel) was of no legal effect whatsoever for all the known reasons one denies legal effect to General Assembly Resolutions and a few more. Creative counter-arguments were not in short supply (The League created the Mandate, the UN was the successor of the League etc.) And then, lo and behold, the pro-Arab legal literature resurrected GA Resolutions (favoring what was seen as the right of return of the refugees and more comfortable boundaries) and the pro-Isreali literature dismissed it as, well, General Assembly Resolutions to which no legal effect attaches. Other examples abound. There are, apparently, no Hague rules for the conduct of “lawfare”.

It was easy to identify the sympathies of the participants already in the first session. It was my mischievous (and naïve) practice to assign to the pro-Israelis the task of defending Arab and Palestinian positions and vice versa. The students rose to the challenge: The positions of opponents were articulated skillfully and persuasively but few, if any, came to doubt their original convictions about right and wrong. I have always regarded my principal vocation to be that of a teacher and educator. From that perspective the Seminar was a demoralizing failure which I finally abandoned.

Reading in recent month the avalanche of comment on the legal aspects of Gaza has brought back that demoralizing feeling. I cannot dismiss it as blogosphere ranting – seeing some of the noted and less noted jurists which have partaken in the slugfest. Make no mistake, I am all in favor of speaking up, even in loud voices, for justice as one understands and sees it. But when the guns fall silent and one turns to forensic analysis – well, surf the press and the blogosphere and what you will find is mostly “Lawfare.” (Mostly – our own EJIL:Talk! in my view has been somewhat more sober, careful and judicious than many others). In most cases one look at the author is enough to predict with unerring accuracy what ‘legal’ conclusions to expect.  

The following will give the flavor: First the opening paragraph from a widely quoted piece which put ‘Israel on Trial’

Chilling  testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip assault entailed grave violations of international law. The emergence of a predominantly right-wing, nationalist government in Israel suggests that there may be more violations to come. Hamas’s indiscriminate rocket attacks on Israeli civilians also constituted war crimes, but do not excuse Israel’s transgressions. While Israel disputes some of the soldiers’ accounts, the evidence suggests that Israel committed the following six offenses….”

And now this equally widely quoted statement attributed to  a British senior officer:

“I don’t think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.”

How, at this stage of the game, with the dust of war hardly settled, and in the present state of knowledge, could either of these writers make and seriously substantiate their respective categorical assertions?

A great deal turns on facts which are hotly disputed. For example, in the grim calculus of proportionality and “collateral damage” numbers do matter. One cannot be squeamish in this area of law. But there are huge discrepancies in the gruesome tallies.  Likewise, whether or not civilian targets such as schools or mosques were in facts used by combatants or contained headquarters, or whether soldiers used captured civilians as shields as has been claimed, are hotly disputed facts credible verification of which would be indispensable for certain legal determinations.

If one surveys the Press “trials” which have already taken place, one cannot but be struck by the contrast between the categorical nature of the claims made by the legal combatants (some of them distinguished scholars who should know better) and the genuinely disputed and unclear factual matrix which would have to form the basis for any such claims.

Gaza also throws up complex and highly contested legal issues. But to read the “lawfare” you would never guess that there was any legal uncertainty as to, say, the legal status of Gaza (still Occupied?) or the applicable “reasonableness” tests, or to the various ways necessity and proportionality have been bandied around,  or the difficult issue whether and/or to what degree one has to sacrifice one’s own soldiers in order to minimize civilian casualties of the enemy to list but a few.

And then there are some serious conceptual conundrums. Can it be the case as one scholar has apparently argued that given the demographics and the entanglement of combatant and civilians in Gaza as a matter of the humanitarian law of armed conflict any use of force would be inherently unlawful? And if so, how does this reshape the relationship between Jus in bello and jus ad bellum?  How does one frame the conflict from a temporal perspective – As a matter of law? As a matter of Justice? And this, too, is just the tip of the iceberg.

Gaza is important. The loss of life, not least of children, was simply awful. The endless rain of rockets preceding the invasion was intolerable. Disentangling the legal issues, establishing whether legal violations, even war crimes were committed, is not a futile exercise. To say, as I have, that often in the never ending Arab Israeli conflict it is right v right rather than right v wrong does not mean that in this specific instance very serious transgressions and crimes by either side or both sides may not have been committed.  There is a role for law and, obviously, for lawyers. But “lawfare,” where conjecture is presented as established fact, where legal submission is presented as legal conclusion,  where the arrow is stuck and the target is then drawn around it, brings honor to no one. Deuteronomy 16:20 inveighs: “Justice, Justice shalt thou pursue.”  Why, one has wondered for centuries and millennia, is the word Justice repeated? One appealing answer is that one must pursue it whether it serves your interest or operates against it. The opposite of “lawfare.” To be cautious and prudent in making legal claims  is not to betray one’s commitment to truth and justice; it is to affirm such a commitment.

Again, make no mistake. The messy factual matrix should not mean that we throw up our hands in despair. There can and should be and there are indications that, indeed, there will be a credible and impartial fact finding enquiry. (As more and more areas of international law are ‘judicialized’ – the nature of international fact finding needs to adapt. The World Court itself has been hampered in recent cases such as Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda by problematic fact finding). Once credible facts are established the time for judging will be ripe. But already now one can begin the serious engagement with the underlying legal issues. EJIL would welcome submissions that could make a profound and lasting contribution to that important engagement.

In This Second Anniversary Issue

We open our second Anniversary issue with the Keynote speech given by Bruno Simma at the most recent ESIL biannual meeting in Heidelberg. Universality of International Law from the perspective of a Practitioner makes for rewarding reading and  its breadth and depth made it an easy choice as our second Anniversary article.

The Anniversary Symposium for this Issue deals with various aspects of the Use of Force. Dino Kritsiotis of the University of Nottingham and Ken Anderson from American University in Washington DC may have taken on classical topics – but fasten your seat belts and prepare yourself to be challenged. Christian Tams from Glasgow and Tullio Treves of Milan (who serves, too, as Judge of the International Tribunal for the Law of the Sea) deal with the less classical: The use of force in fighting terrorists and pirates respectively. Keep those seatbelts fastened.  We were not interested in the “Law as it Stands” style pieces. These are all pieces with a view, with a thesis. We expect some disagreement.

We are planning in Issue 4 of the 20^th Anniversary Volume to collect reactions to the various Anniversary Symposia. If you are interested in contributing a reaction paper of no more than 3000 words, please email an abstract to the Editorial office.  

In this issue we continue our occasional series presenting a critical review of jurisprudence of different international courts and tribunals with, fittingly, an interesting article by Janine Clarke on Plea Bargaining at the ICTY; and EJIL: Debate! returns with an exchange between Roda Mushkat and Ryan Goodman & Derek Jinks on the issue of internalization of compliance with human rights law.

Housekeeping

EJIL has been steady over the years in containing the disease of Citisis (excessive footnoting)  prevalent in North American legal publishing from crossing the Atlantic. Propositions should be substantiated, authorities and secondary literature cited, but an article is meant to be by and large a solo performance, not a duet between the text and interminable footnotes. There is another North American disease which we want to nip at the bud – excessive (and phony) ‘Thanks’ as part of the first footnote. Very often this is not about thanking at all but about establishing some kind of ‘approval pedigree’ and/or a grotesque form of name-dropping. I recall sitting in a workshop and asking the speaker to clarify something that I had not heard well because of some outside noise, and then seeing my name being included in the embarrassing litany. EJIL’s policy is thus Thank you, but no thank you. Sure, occasionally one is obligated to thank a grant giving authority; a really important contribution by a Research Assistant; a colleague that went above and beyond the normal expectation of academic collegiality. EJIL Contributors:  If you really have to, you have to, but please keep them short and pointed. And if your conscience worries you, send a signed reprint to all the others – another North American disease (batch reprint dispatch) but we will turn a blind eye to that if the reprint is of an EJIL piece.

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

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.

Fast forward to Kadi: I have no quibble with the material outcome of the review by the ECJ (I am one of the few who found the decision of the Court of First Instance not without problems but very compelling at its core – for reasons which I may explicate elsewhere). But the process adopted by the ECJ is remarkably Medellin-type – a bold and unsophisticated assertion that once within its jurisdictional review, in effect the measures would be ‘Europeanized’ and in reality not treated any differently had they been autonomous measures adopted by the Council of Ministers rather than measures originating from the Security Council. I have seen commentators ‘reading into the decision’ a dialogical element reminiscent of the Solange jurisprudence. Such is beauty that comes from the eye of the beholder, not from the text of the Decision. The opinion of Advocate General Maduro on this issue is an altogether different and more interesting matter. This cannot be the correct way in which supreme jurisdictions should interact with norms originating from the highest organs of the International Legal Order – withdrawing into one’s own constitutional cocoon, isolating the international context and deciding the case exclusively by reference to internal constitutional precepts – a pristine page out of the US Supreme Court approach in Medellin. The European Court would not accept such from Member State courts when dealing with a norm originating from Europe. In the same way, it should not accept such from itself. To avoid any misunderstanding, I do not claim that the result was necessarily wrong, i.e. that one should give the Security Council a carte blanche - it is exactly on this point that the CFI should have acted with more judicial integrity - nor that the type of consideration appropriately to be applied to a Security Council mandate should be the same that a domestic court would apply to a regulation of the Council of Ministers. But the cross-cutting jurisdictions require a different hermeneutic, something, it seems, both the US Supreme Court and the European Court are in need of understanding.

We will be publishing in our next issue a fuller analysis of Kadi and commentary thereon. We invite our readers to make their views known on that article, and indeed on this Editorial, here on our new blog EJIL: Talk!.

Georgia

I have read in the blogosphere and received emails myself claiming that the events in Georgia require a rethinking and rewriting of the laws governing the use of force and the acquisition of territory. I am rather sceptical but would welcome articles arguing the opposite. To me, it is a case of ‘plus ça change, plus ça reste la même chose‘.

But let us first address the depressing politics – this time demoralizing world politics perfectly personified by some celestial Central Casting.

First, the breathtakingly cerebrally challenged Saakashvili, whose every move, including throwing the match into the dry tinder, has militated against his desired entry of Georgia into NATO. The conspiracy minded may well claim that he was a Russian agent. His one redeeming feature were his blustering sophomoric news conferences which supplied relief to a very serious situation – comic relief, that is, provided by the squirming dignitaries forced to stand, ex officio, by his side and suffer each of his ‘I told you so…!’

Then we were treated to a rather new scary spectacle – US officials palpably and transparently aware of their real and perceived weakness, also of their lack of credibility, speaking loudly whilst carrying a broken reed. It is a photo-finish as to which America gives us more of a shiver – blustering, over-confident, but strong, or blustering, under-confident, and weak.

And then there was the redoubtable Sarkozy and Merkel (but hardly Solana…!) making all the right noises of ‘engagement diplomacy’, but unable to paper over the deep internal divisions within the Union, and therefore manifesting again Europe’s long inability to translate its economic might into political and military capital – so what’s new? Only Putin comes out entirely in control – hopefully, in the long run, a Pyrrhic victory.

The Russians will not withdraw from the two rump entities any time soon and no one will push them either. Have the Superpowers not been somewhat more equal than everyone else for some time now? That does not make the invasion any more legal than that of, say, Turkey into Cyprus and the status of the rump ’statelets’ is indeed likely to remain more like that of Northern Cyprus than that of Bangladesh. This may not be the time for talking of ’shifting paradigms’ (a less elegant phrase might be ‘koshering the pig’) but perhaps it is rather even more important to hold fast to the old ones oft consecrated in their breech. But I am sure there are other views out there and EJIL or EJIL:Talk! would welcome hearing them.

In this Issue

We end the year Marking the Anniversary of the UDHR with an intellectual bang. As indicated in an earlier Editorial we resisted the temptation to publish a piece on The Life & Times of the Declaration, let alone a biography of the Declaration, authorized or unauthorized. Instead, I asked Jochen von Bernstorff of the Max Planck-Institute in Heidelberg to write a Review of Reviews – a decidedly different and in some respect more interesting exercise – on the reception of the Declaration over the decades by commentators and reviewers. His article opens the continued Symposium on the UDHR Anniversary in this issue, and is entitled ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the International Human Rights Discourse.’ From time to time, EJIL publishes speeches when it considers that the credentials of the speaker and the content of the speech both add to the intellectual stature and academic quality of the Journal (see e.g. the speech of Pascal Lamy in Vol 17:5). In this issue, and still part of our UDHR Anniversary celebration, we publish a speech by Mary Ann Glendon commenting on the very important address of Pope Benedict XVI on Human Rights to the General Assembly.

We also use the occasion of the UDHR Anniversary to introduce a new rubric to this journal, EJIL: Debate!, this time with one comment and one exchange on two pieces which appeared in the Human Rights Symposium published in EJIL Vol. 19:4. Paolo Carozza replies to Christopher McCrudden (on ‘Human Dignity and Judicial Interpretation of Human Rights‘), and Robert Howse replies to Ulrich Ernst Petersmann who rejoins (on ‘Human Rights, International Economic Law and Constitutional Justice‘). If academic debates in general fall into two broad categories, this must be true for EJIL: Debate! as well. Some debates follow the Wisest of Men in Ecclesiastes 9:17 ‘The words of wise men are heard in quiet ….’  Other debates light the fires of the passions – notably the passion for truth. Fires tend to be hot: The Talmud (Avot II: 10) is apposite:

Warm yourself before the fire of the sages, but be heedful of their glowing coals for fear that you be burned, for their bite is the bite of a jackal and their sting the sting of a scorpion and their hiss the hiss of a serpent, and all their words are like coals of fire.

Our inaugural EJIL: Debate! falls into both categories. One way or the other, we the readers are the beneficiaries.

Private Armies – A Symposium

At the core of this issue we publish the very topical Symposium entitled ‘Private Military Contractors and International Law’. In this Symposium, there are five selected articles chosen from a broader range of contributions to a conference on this topic: Nigel D. White and Sorcha MacLeod turn to ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility‘, Carsten Hoppe deals with ‘State Responsibility for Private Military Companies‘, Chia Lehnardt’s piece is concerned with ‘Individual Liability of Private Military Personnel under International Criminal Law‘, Cedric Ryngaert investigates the ‘Litigating Abuses Committed by Private Military Companies‘, and Simon Chesterman finally declares: ‘We Can’t Spy … If We Can’t Buy!‘, exploring ‘The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions”. I refer the reader to the Introduction written by Francesco Francioni of the Board of Editors, who was the Symposium Editor and to whom we express our profound gratitude for conceiving, executing and editing the Symposium.

Last but not least in this issue we publish an article by Jean D’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials‘, who refreshes and modernizes, without repeating, the classic positivist objection to soft law, and produces a new account of softness in law. By identifying various agendas underlying different kinds of soft law, he reminds - and provokes - us international lawyers to reflect on our own behaviour and practice with regard to soft law as a concept of the international legal order. In the Book Reviews Section, you will find a review essay by Maksymilian Del Mar, discussing ‘Jurisprudence on the Frontline‘ through a review of Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering.

Outside this Issue

EJIL already has a homepage www.ejil.org, the autonomous website of the European Journal of International Law. Our website was a pioneer long before publishers such as our current publisher, OUP, moved into digital journal publishing, and it is distinct from all other mainline journals of which we are aware. Not only is a sizeable portion of current content made free to the reader, but all content becomes free one year after publication – the scholarly world Napster! I say all this to indicate that we are not parvenus to the notion of digital internet publishing.

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing – to use these two terms as metaphors. Twenty years ago, EJIL made huge efforts to provide ’services’: Recent decisions of the ECJ on matters of International Law as well as decisions of the WTO of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of internet search engines and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’- but try to have a symposium on a recent decision of the ICJ or a certain ‘incident’ as soon as possible after the event! That too has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for bringing in aggressively younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to and interest in history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate …). If our new blog EJIL:Talk! is successful, it will enable us to effect a further change in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. We will become more lenient with longer articles (see e.g. Christopher McCrudden’s piece in EJIL 19:4). EJIL:Talk! may be the outlet for the shorter piece. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Please help make EJIL:Talk! a successful blog and, indirectly, EJIL an even more successful Journal.

JHHW

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.