The latest issue of the European Journal of International Law (Vol. 27, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Charles Leben’s Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.
By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom, I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy!
Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)
A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court. Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say, Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement.
Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini, Italian Constitutional Justice in Global Context (Oxford University Press, 2015)
This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more.
Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015) Read the rest of this entry…
As EJIL readers will know, we publish statistics each year on the submissions received, accepted and published in the Journal during the previous 12 months. We call them ‘Vital Statistics’ because we believe that it is vitally important to observe and understand trends in the submission and publication of articles in our Journal: Who is writing, where are manuscripts coming from, which languages do our authors speak, can we detect any changes in submission trends? We present our statistics with no frills, letting them speak for themselves.
There are no special requirements for authors wishing to submit to EJIL. We encourage the new, the innovative, the young and the well-established to submit to EJIL, but there is no editorial affirmative action in selecting manuscripts for publication. Our double-blind review process makes certain of that. Of course, EJIL does commission some articles, and readers will find statistics on the incidence of unsolicited and commissioned articles in our pages here as well.
We have seen a very gradual rise in the percentage of manuscripts submitted and published by women authors in recent years, with the figures now showing that 37 per cent of submissions and published articles for 2015 were by women authors. The number dropped slightly to 31 per cent for accepted articles.
We divide the world into four regions for our statistical purposes: the European Union, the Council of Europe countries outside the EU, the US and Canada, and the rest of the world. This may seem a little misleading as it indicates the place of submission – normally the institution at which authors work or study, rather than their actual nationality – but overall we believe it conveys a fairly reliable picture of our authors and EJIL’s presence in the world. Of the total number of manuscripts submitted in 2015, 44 per cent came from the EU, 8 per cent from CoE countries, 19 per cent from the US and Canada and 29 per cent from the rest of the world; thus, very similar figures to those of the previous year for the first two groups, whilst US and Canadian submissions showed a decline and rest of the world submissions increased. These percentages are closely reflected in the figures for published articles. Only 8 per cent of this year’s authors hail from the US and Canada, though the percentage of accepted articles by North Americans was much higher at 31 per cent. Thus, next year’s statistics may speak differently in this respect. Read the rest of this entry…
The EJIL Foreword
This issue opens with the second entry under our new annual rubric, The EJIL Foreword. As I explained a year ago, the Foreword is designed to enable a distinguished scholar in our discipline to undertake a sweeping view of the field, a more extensive analysis, synthesis, conceptualization, or systemic theorization than is usually possible in an EJIL article. It is fitting, then, that Robert Howse’s contribution in this issue surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. Howse presents a fresh and fascinating account of this seemingly well-known story, unearthing new insights and creating a new standard point of reference for studies of the WTO Appellate Body. An EJIL: Live interview with Professor Howse, available on our website complements the article.
In this Issue
The Foreword by Robert Howse is followed by four articles. In the first, Charles Leben presents a rich and original historical analysis of the influence of Hebrew sources on the development of international law in early modern Europe. In the second, Andreas Kulick explores the inconsistent use of estoppel in international investment arbitration and the lack of reasoning used to justify the different approaches taken, leading him to conclude that the ‘cart may have come before the horse’ in many of the decisions surveyed. Yoshiko Naiki examines the important but understudied area of international regulatory arrangements around biofuels, in the process making an important contribution towards understanding the functioning of a fragmented governance system with multiple coexisting regimes. Finally, Timothy Meyer adopts a rational choice approach to explain the choice of soft law over binding law forms of agreement, with particular reference to the context of uncertainty and shifting power dynamics in which such decisions are made.
In Roaming Charges, this issue features a photograph by Michael Klode, entitled Halls of Justice: At the African Court on Human and People’s Rights in Arusha, Tanzania.
The last article in this issue appears under our regular rubric, Critical Review of International Jurisprudence: in yet another example of the growing ‘empirical turn’ in international legal studies, Manley Stewart examines referencing patterns at the International Criminal Court.
We end the issue on a light, yet astute, note with The Last Page. Niccolò Ridi and Sondre Torp Helmersen offer us Public International Limericks and by way of a teaser:
The Function of Law in the International Community
The place of international law and its sources
Is not just in books and university courses
It can actually mute
A protracted dispute
The views expressed here are personal to the Editor-in-Chief and do not reflect the official position of either the European Journal of International Law or the European University Institute.
The latest issue of the European Journal of International Law will be published next week. Over the next few days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:
The EJIL Foreword; 10 Good Reads; Vital Statistics; EJIL’s Assistant Editors; With Gratitude – Shirley Wayne; In this Issue
The EJIL Foreword
Robert Howse, The World Trade Organization 20 Years On: Global Governance by Judiciary
Charles Leben, Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe
Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals
Yoshiko Naiki, Trade and Bioenergy: Explaining and Assessing the Regime Complex for Sustainable Bioenergy
Timothy Meyer, Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation
Michael Klode, The Halls of Justice. At the African Court on Human and People’s Rights in Arusha, Tanzania Read the rest of this entry…
This issue opens with an article that is sure to provoke discussion and perhaps disagreement. Yishai Beer argues that the principle of necessity should be understood as constraining military action, particularly when infused with the standards of a modern professional military. We continue with three articles focusing on the European Court of Human Rights. In the first, Helen Keller and Cedric Marti propose a novel framework for understanding – and further enhancing – the more assertive stance of the Court, during various phases of its work, in ensuring the implementation of its judgments. The next article, by Anna Dolidze (who was recently appointed the Deputy Minister of Defence of Georgia), examines the Court’s borrowing of the amicus curiae participation procedure from the UK, and offers a theory of the conditions under which such internationalized legal transplants may take place. The third article, by Mathias Möschel and Ruth Rubio-Marín, considers how the Court’s jurisprudence has been distorted by what they call the ‘Holocaust Prism’, through which the Court views and responds to cases involving racial discrimination. Rounding out the main Articles section in this issue is a piece by An Hertogen, which argues that the well-known ‘Lotus principle’ reflects a misreading of the majority opinion in that landmark case, and should be re-cast in a manner that is more compatible with contemporary needs.
The first entry under our new rubric, For the Classroom, is an article by John Morss on the claims to statehood under international law of the Vatican/Holy See. In For the Classroom we select articles on discrete classical areas of International Law whose subject matter, comprehensiveness and quality make them particularly suitable for teaching purposes. Read the rest of this entry…
EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2015.
Philip Alston, Alberto Alvarez-Jimenez, Dia Anagnostou, Stelios Andreadakis, Helmut Aust, Lorand Bartels, Arnulf Becker Lorca, Gary Beckman, Andrea Bianchi, Tomer Broude, Congyan Cai, Iris Canor, Patrick Capps, James Cavallaro, Damian Chalmers, B. S. Chimni, Ioana Cismas, Matthew Craven, Luigi Crema, Robert Cryer, Sophia Dawkins, Gráinne de Búrca, Janina Dill, Jeffrey Dunoff, Angelina Fisher, Caroline Foster, Michelle Foster, Rosa Freedman, Mónica García-Salmones Rovira, Geoff Gilbert, Guy Goodwin-Gill, Monica Hakimi, Gerd Hankel, Laurence Helfer, Kevin Heller, Florian Hoffmann, Yann Kerbrat, Jan Komárek, Dino Kritsiotis, Andreas Kulick, Jürgen Kurtz, Isabelle Ley, Paolo Lobba, Benoît Mayer, Christopher McCrudden, Frédéric Mégret, Sonia Morano-Foadi, Martins Paparinskis, Joost Pauwelyn, Jacqueline Peel, Niels Petersen, William Phelan, Eric Posner, Heather Roff, Cecily Rose, Arie Rosen, Cedric Ryngaert, Margaret Satterthwaite, Martin Scheinin, Bas Schotel, Yuval Shany, Henry Shue, Gerry Simpson, Bart Smit Duijzentkunst, Gila Stopler, Stefan Talmon, Christian Tomuschat, Anna Triandafyllidou, Nicholas Tsagourias, David Victor, Jochen von Bernstorff, Wouter Werner, Ramses Wessel, Andrew Williams, Reinmar Wolff.
Do you ever have the feeling that simply too much is getting published these days? That one simply cannot keep up with it all, that things would be a lot better if less were published, not least because then there would be a greater chance that what we ourselves publish, never too much of that, of course, would get noticed?
Technology has certainly increased academic productivity, as it has increased productivity elsewhere. It is easier to do research (so long as the sources are digitized and searchable), to write, to cite, and to publish. The number of legal journals has exploded, increasingly in online form, driven at least in part by the lower entry barriers, set up and distribution costs for publishers as well as the scandalous profits they make from journal publication. And then, of course, there is self-publishing. In the world of literature, when an author self-publishes it is called vanity publishing; in academia it is called SSRN. I say this tongue in cheek, of course, but grant me it is something of a mixed blessing. Democratization of publishing has increased (good); discernment has diminished (less good).
Not surprisingly, everybody is so busy writing these days, publishing, self-publishing and then self-promoting (attaching links to one’s own recent publications at the end of every email has become more the norm than exception) that hardly any time is left for reading. By this I mean serious, reflective reading and not simply picking up a few citations to put in what I happen to be writing, which, if lucky (very lucky), will be read by others in the same cursory manner. But then who cares as long as my piece ends up being similarly cited?
I read. A lot more than I write, and not only because I have aged and have, even in my own eyes, less interesting things to say and certainly less time to do research. Read the rest of this entry…
The latest issue of the European Journal of International Law has been published. Beginning tomorrow, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts appear in the Editorial in the new issue. Here is the Table of Contents for this new issue:
On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap; Roll of Honour; In this Issue
Yishai Beer, Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity
Helen Keller and Cedric Marti, Reconceptualizing Implementation – The Judicialization of the Execution of the European Court of Human Rights’ Judgments
Anna Dolidze, Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant
Ruth Rubio-Marín and Mathias Möschel, Antidiscrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism
An Hertogen, Letting Lotus Bloom Read the rest of this entry…
In Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, Stefan Talmon revisits the old debate over inductive and deductive methods for finding customary international law (CIL) to see whether we can now, fifty years after the original debates, learn any lessons about whether, when, and how the International Court of Justice uses each. What Talmon finds is that there are no clear patterns in how the ICJ uses each method, and that in fact, it is a third method, assertion, that best exemplifies the Court’s approach. What Talmon only hints at though are much broader lessons—that the ICJ’s failure to adopt a clear methodology for finding customary international law is only a symptom of a much broader problem, that the ICJ has never articulated a clear, coherent explanation of its authority to interpret customary international law or for whom. The ICJ’s efforts to find customary international law may simply be incoherent, a mirage, or even impossible.
The questions that Talmon’s study begs are why. Why isn’t the ICJ more interested in developing a clear methodology and why are there no patterns in the ICJ’s use of deductive or inductive methods? And why aren’t states more concerned? Why haven’t states demanded a clear methodology before treating ICJ decisions on custom as authoritative?
Methodology as Justification
Starting with the first question, the lack of clear methodology hints that the ICJ’s choice of induction, deduction, or assertion has little to do with methodology and everything to do with justification. When the Court invokes each one, it is attempting to justify its authority to interpret or find rules of CIL. Assertion makes this clearest—in the absence of any real evidence of a customary rule, the Court justifies it rules with appeals to “obviousness.” As Talmon wisely observes, both inductive and deductive methods are claims of derivative authority—the Court is not “making” or “choosing” a rule, but merely “finding” the rule made by states themselves in their interaction with one another. This is true whether the Court counts practice and weighs opinio juris or attempts to deduce a specific rule from recognized more general ones. It also tracks the requirement of article 38 of the ICJ Statute that the Court apply “international custom, as evidence of general practice accepted as law.” In essence, the Court‘s claim is that it is simply stepping into the shoes of states and making the same judgment they would make about specific rules and actions.
Negotiated Law and Adjudicated Law
The problem reflected in the ICJ’s methodological muddle is that this task may be impossible and the justification something of a fib. A court cannot step into a state’s shoes. A court forced to find a rule to decide a case is engaged in a fundamentally different activity than a state discerning a rule to guide its actions or jockeying for its favoured interpretation in relations with other states. Read the rest of this entry…