Home Archive for category "EJIL"

New Issue of EJIL (Vol. 27 (2016) No. 3) Published

Published on October 10, 2016        Author: 

The latest issue of the European Journal of International Law (Vol. 27, No. 3) 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 Deborah Whitehall’s A Rival History of Self-Determination. EJIL 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.

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Continent in Crisis

Published on October 7, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).

In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.

Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success? Read the rest of this entry…

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Filed under: Editorials, EJIL, European Union

There is Chutzpah and Then There is David Cameron

Published on October 6, 2016        Author: 

It is hard to translate the Yiddish word Chutzpah. Cheek doesn’t quite capture it. ‘What a cheek’ is not the same as ‘What Chutzpah’. Chutzpah involves a certain brazenness. ‘What Chutzpah’ is usually associated with a rubbing of the eyes or a shake of the head in disbelief. Even a kind of perverse admiration. The classical example of Chutzpah is the son who kills his mother and father and then turns to the judge and pleads: Mercy, I’m an orphan.

Cameron has taken Chutzpah to new heights.

A good place to start would be in the final weeks of the campaign when Cameron’s refrain was ‘Brits don’t Quit!’ Rub your eyes – this from the Brit who just months earlier had presented his ‘either we get this and this and that or, well yes, we quit’. Takes some nerve, does it not? Of course to have any credibility in his pre-referendum Brussels negotiations he would have to sell himself and his country as ready to quit.

You would think that in playing against the grain of ‘Brits don’t quit’ there would have to be something huge at stake. You may just remember the weeks that became months when the world and its sister were waiting for him to present his list of demands. You will certainly not have forgotten the disdainful disbelief from all and sundry when he finally presented his Potage of Lentils – that thin gruel of demands for which he was willing to gamble the future of the UK membership of the European Union and much more.

It was also an insult to one’s political intelligence. As a ploy to address internal party politics – the real reason behind the whole unfortunate manoeuvre – did he really believe that even if his demands were met in full (and they mostly were) this would keep the wolves at bay? Even more damning in my view, it was clear that Cameron never grasped the serious problems of the European construct which, if one were to use the ‘nuclear option’ of threatening to quit, could and perhaps should have been raised. Read the rest of this entry…

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Filed under: Editorials, EJIL, European Union

On My Way Out – Advice to Young Scholars III: Edited Book

Published on October 5, 2016        Author: 

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the third instalment and it is one in which, even more than my earlier instalments, I look back ruefully and in St Augustine fashion offer a ‘don’t do what I did…’ set of suggestions.

A more appropriate title would have been Unedited Books and the crux of my advice is – proceed with caution, avoid if at all possible.

The routine is well-known and well-practised. You receive an invitation to present a paper at some conference. You accept (see below). You may adapt something you have already written or something that you are working on which is in some way connected. It is often not exactly what the conveners had asked for or had in mind, but perhaps close enough so as not to have to reject the invitation. The conveners are often accomplices in this little approximation. They are committed to the conference; it is often part of some grant they have received. Almost always you are pressed for time – after all it is not as if these invitations arrive when you are sitting back, twiddling your thumbs and looking for things to do. In general they are disruptive of your flow of work. So the result is not as good as it might have been. Sounds familiar?

You attend the conference. It shows. The papers presented are of very variable quality and relevance. There is the usual conference overload so that the habitual 10-15 minute ‘commentator’ input may be interesting but of limited value to your paper. The general (‘unfortunately we only have xx minutes for questions’) discussion is even less so – how many actually read the papers (which not infrequently arrive two days before the conference)? Still sounds familiar? Read the rest of this entry…

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Filed under: Editorials, EJIL

From the Editor’s Mailbag

Published on October 4, 2016        Author: 

The following are two letters received from Claus Dieter Ehlermann and Robert Howse respectively.

“I am writing to you as Editor of the European Journal of International Law about the recent article by Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ in the EJIL, Volume 27, No. 1 (2016). At page 41, Professor Howse devotes a paragraph to the resignation of Debra Steger, the first Director of the Appellate Body Secretariat, in late March 2001.

As Chair of the Appellate Body at that time, I would like to offer some facts to avoid misunderstandings.

First, as WTO Director of the Information and Media Relations Division, Keith Rockwell, said at the time, Professor Steger resigned for personal reasons. Second, the Appellate Body Members have always held her in the highest respect, she has always been very loyal and respectful to us, and we remain very close friends to this day. Third, there was absolutely no linkage whatsoever to the EC-Asbestos amicus brief issue. All seven Appellate Body Members and Professor Steger were in complete agreement on this issue and case all the way through.”


“We should all be grateful to Claus-Dieter Ehlermann, former Member of the WTO Appellate Body, and one of its original Members, for clearing the air concerning the Appellate Body’s relationship with its Secretariat, and particularly the head Debra Steger, during the turbulent formative years that were marked by, inter alia, the controversy over amicus curiae briefs.  I have always had excellent amicable professional relations with both Dr. Ehlermann and his former Appellate Body colleagues, as well as with Ms. Steger; given my high esteem for all involved it is comforting to be assured that the controversy in question did not in any way test or strain a vital working relationship that was very likely crucial to the Appellate Body’s early success as a true trade court.”


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Conflicts of Interest in the Editorial Process

Published on October 4, 2016        Author: 

EJIL encourages the submission of articles that challenge received knowledge and subject institutions of the international legal order to critical scrutiny. Inevitably, this may result in conflicts of interest in the editorial process. Members of the Board of Editors are not remote from the life of international law. They write articles and books, act in cases, serve on courts and tribunals. From time to time we receive a submission which may implicate such: be critical of a book or article written by a Member of the Board, relate favourably or otherwise to a case decided by a Member of the board or in the process of being decided, etc. Our standard practice when such a conflict of interest comes to our attention is immediately to recuse the Member in question from any editorial decision pertaining to the item concerned.

Likewise, if someone writes on a case in our Critical Review of Jurisprudence section we would normally not accept such from one of the counsel in the case. Where dealing with such a case is part of a larger piece, we expect full disclosure to the reader.

Book reviewers are asked to recuse themselves if there is a conflict of interest such as a relationship of close friendship or enmity. Read the rest of this entry…

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Filed under: Editorials, EJIL

EJIL: In this Issue

Published on October 3, 2016        Author: 

This issue opens with a pair of articles addressing aspects of human rights protection in the European Union. In a compelling critique of the CJEU’s adverse Opinion on the EU’s accession to the European Convention on Human Rights, Turkuler Isiksel argues that the roots of the Court’s Opinion lie in an attitude of ‘European exceptionalism’, that institutional accountability results in the better protection for human rights, and that this applies with equal force to the EU legal order itself. Nora Markard then examines the EU’s practice of outsourcing its border controls, presenting a forceful argument that the involvement of third countries in this regard does not exempt the EU from international responsibility in relation to the law of the sea and the right to leave.

The next three articles in this issue investigate the intersection of international law and politics in several areas. Michal Saliternik argues that the introduction of procedural justice norms to peace negotiations will remedy representation deficits and enhance the success of such processes. Armin Steinbach explores the different analytical logics underpinning rational choice and behavioural economics, by comparing these approaches in their application to non-consensual forms of cooperation in international law. And Daniel Augenstein considers the relationship between the localization of the politics of human rights to sovereignty structures in global resource exploitation.   Read the rest of this entry…

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New Issue of EJIL (Vol. 27 (2016) No. 3) – Out Next Week

Published on October 3, 2016        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming 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:


Turkuler Isiksel, European Exceptionalism and the EU’s Accession to the ECHR

Nora Markard, The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries

Michal Saliternik, Perpetuating Democratic Peace: Procedural Justice in Peace Negotiations

Armin Steinbach, The Trend toward Non-consensualism in Public International Law: A (Behavioral) Law and Economics Perspective

Daniel Augenstein, Paradise Lost: Sovereign State Interest, Global Resource Exploitation and the Politics of Human Rights

New Voices: A Selection from the Fourth Annual Junior Faculty Forum for International Law Read the rest of this entry…

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Horrible Metrics

Published on August 24, 2016        Author: 

I was visiting the site of the American Journal of International Law this morning, and this particular advertising blurb caught my eye:

The Journal ranks as the most-cited international law journal on Google Scholar. It is also considered by the nonprofit, scholarly periodical resource JSTOR to be “the premier English-language scholarly journal in its field.”

Wow, I thought – it’s no longer sufficient to say that the international law academic profession as a whole regards the AJIL and EJIL as the two most prestigious journals in the field, but even when we are self-promoting to our own readership we have to refer to some kind of metric or league table. Second wow, I had no idea that Google Scholar ranked international law journals, I should really check that out. Here’s the table:

Read the rest of this entry…

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Filed under: EJIL, EJIL Analysis
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EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…

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Filed under: EJIL, EJIL Article Discussion