We begin this new issue of EJIL with four articles. Jaye Ellis explores comparative law’s contribution to the identification of general principles as a source of international law through a renewed understanding of the interplay between municipal legal systems and international law. Thilo Rensmann analyses the ways in which two Munich Alumni, Ernst Rabel and Karl Loewenstein, have influenced the evolution of international human rights law (see full free text of article here). The importance of scholarship is also illustrated by Anastasios Gourgourinis in his article as he suggests some tools which aim to overcome the fragmentation of international law: the general/particular international law and the primary/secondary norms dichotomies which, in his view, constitute the unitary elements of the international legal system. Lastly, Daphne Richemond-Barak tackles another kind of fragmentation: the decentralized regulatory framework of the private security and military industry, and seeks to demonstrate the potential of Global Administrative Law methodology in understanding and contending with the growth of the private security and military industry.
In our occasional series, Critical Review of International Jurisprudence, Sonia Morano-Foadi and Stelios Andreadakis reflect on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights to achieve a more harmonious and convergent human rights system in Europe, based on a careful study of the divergent approaches of the ECJ and the ECtHR in the specific area of expulsion/deportation of third country nationals from the European territory.
In our rubric Critical Review of International Governance, Abigail Deshman sets out to identify the questions raised and the answers provided by a rare case of horizontal review between international organizations: the Parliamentary Assembly of the Council of Europe’s criticisms of the transparency and accountability of the World Health Organization during the H1N1 pandemic.
Two EJIL: Debates! this time. The first, between Roda Mushkat and Kevin Tan, revolves around an analysis of the process leading to the signing of a path-breaking agreement between China and the United Kingdom regarding the future of Hong Kong, offering insights on the development of governance systems that regulate complex interaction between states. In the second debate, Bas Schotel, responding to the article by Sarah Nouwen and Wouter Werner published in 21:4 EJIL (2010), focuses on the use or abuse of law by the International Criminal Court in recent cases through its portrayal of parties to a conflict as an ‘enemy of mankind’.
Impressions, our book review rubric which invites distinguished scholars to reflect on a book that strongly influenced their intellectual development, continues in this issue with a contribution by Philip Allott (see free full text here). In precisely the spirit of Impressions, Allott starts his reflections with the statement: ‘A book can change a mind, but only if that mind is ready to be changed.’ He then goes on to illustrate this point by recounting the long-lasting impression Plato’s Republic made on him.
The table of contents of this new issues is below:
European Journal of International Law
Vol. 22 (2011) No. 4
Contents
Editorial: Nino – In His Own Words; In this Issue; The Last Page and Roaming Charges 931
Articles
Jaye Ellis, General Principles and Comparative Law 949
Thilo Rensmann, Munich Alumni and the Evolution of International Human Rights Law 973 Anastasios Gourgourinis, General/Particular International Law and Primary/Secondary Rules: Unitary Terminology of a Fragmented System 993
Daphné Richemond-Barak, Regulating War: A Taxonomy in Global Administrative Law 1027
Critical Review of International Jurisprudence
Sonia Morano-Foadi and Stelios Andreadakis, The Convergence of the European Legal System in the Treatment of Third Country Nationals in Europe: The ECJ and ECtHR Jurisprudence 1071
Critical Review of International Governance
Abigail C. Deshman, Horizontal Review between International Organizations: Why, How, and Who Cares about Corporate Regulatory Capture 1089
Roaming Charges: Places of Worship: Piazza Duomo Milano 1115
EJIL: Debate!
Roda Mushkat, The Dynamics of International Legal Regime Formation:
The Sino-British Joint Declaration on the Question of Hong Kong Revisited 1119
Kevin Y. L. Tan, The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Reply to Roda Mushkat 1145
Roda Mushkat, The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Rejoinder to Kevin Tan 1149
EJIL: Debate!
Bas Schotel, Doing Justice to the Political. The International Criminal Court in
Uganda and Sudan: A Reply to Sarah Nouwen and Wouter Werner 1153
Sarah M. H. Nouwen and Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan: A Rejoinder to Bas Schotel 1161
Impressions
Philip Allott, On First Understanding Plato’s Republic 1165
Book Reviews
Antonio Cassese, Five Masters of International Law: Conversations with R-J Dupuy, E Jimenez de Arechaga, R Jennings, L Henkin and O Schachter (Jan Klabbers) 1175
Sir Hersch Lauterpacht, The Function of Law in the International Community
(Isabel Feichtner) 1177
Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Isabelle Ley) 1180
Peter G. Danchin and Horst Fischer (eds), United Nations Reform and the New Collective Security; Spencer Zifcak, United Nations Reform: Heading North or South? (Anne-Laurence Graf-Brugère) 1184
Gerd Hankel, Das Tötungsverbot im Krieg (Sigrid Mehring) 1189
Olivier Corten, The Law Against War (Irène Couzigou) 1193
Jane McAdam (ed.), Climate Change and Displacement. Multidisciplinary Perspectives (Jenny Grote Stoutenburg) 1196
Peter H. Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik (Ebrahim Afsah) 1200
Gregory C. Shaffer and Ricardo Meléndez-Ortiz (eds), Dispute Settlement at
the WTO: The Developing Country Experience (Mary E. Footer) 1204
Rüdiger Wolfrum, Peter-Tobias Stoll and Holger P. Hestermeyer (eds), WTO: Trade in Goods (Sungjoon Cho) 1209
Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of
Crisis: The Role of International Law and the State Department Legal Adviser
(Andre Stemmet) 1211
Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective (Alessandro Chechi) 1214
Briefly Noted
Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (Alexandra Kemmerer) 1218
The Last Page
Jonathan Shaw, On Reading Horace Odes 3.2 with Rusty Latin 1219
I enjoyed reading Jaye Ellis’s article on comparative law’s contribution to the identification of general principles in the latest issue of the EJIL. However, I wonder if her focus on the interplay between municipal legal systems and international law may not have been overstated.
The result was that, while on the one hand, the author acknowledged that one of the main reasons for the controversy surrounding general principles as a source of international law lied in difficulties with the underlying sources of validity of general principles. In her words “…how can judges justify reliance on rules or concepts taken from other systems of law without arrogating to themselves law-making power?”
On the other hand, in ‘re-thinking’ this source of international law, the author suggested dispensing with the representativeness criterion altogether and instead grounding the validity of a general principle purely “in the soundness and persuasiveness of legal argumentation” of the international judges.
While this latter suggestion may have had merit, it did little to appease the initial controversy.