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Vital Statistics

Published on April 2, 2014        Author: 

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

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

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

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Roll of Honour

Published on April 1, 2014        Author: 

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

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

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Quantitative Empirical International Legal Scholarship

Published on April 1, 2014        Author: 

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

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Subsequent Practice in the Whaling Case, and What the ICJ Implies about Treaty Interpretation in International Organizations

Published on March 31, 2014        Author: 

Today the ICJ delivered its long-anticipated judgment in the Whaling Case (Australia v. Japan: New Zealand Intervening), finding Japan’s whaling program in breach of the Whaling Convention on several counts. It is a rich judgment, which will be more fully digested over the next few days.

In this post I want to draw attention to one specific point on the ICJ’s approach to the interpreting the Whaling Convention – specifically the Court’s approach to subsequent agreement and practice in relation to its prior advisory jurisprudence on the interpretation of the U.N. Charter. The relevant aspect of the Whaling Judgment concerns the Court’s assessment of the weight of resolutions issued by the International Whaling Commission (IWC).

The IWC is a supervisory body established by the Whaling Convention. It has the capacity to amend certain provisions of the Convention by three-fourths majority vote (though amendments will not bind any State Party that objects). It can also render non-binding recommendations. The Court indicates at the outset that while such resolutions are non-binding, when “they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention.” (¶46). The Court notes that the Commission has amended the Convention several times, and that “the functions conferred on the Commission have made the Convention an evolving instrument” (¶45). Read the rest of this entry…

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ICJ Decides the Whaling in the Antarctic Case: Australia Wins

Published on March 31, 2014        Author: 

This morning the ICJ delivered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court did not want to define with particular precision, it was still not conducted for the purposes of scientific research, and thus violated Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The Court took a number of factors into account in making this determination, including: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects. The determination in the Court’s view required an objective standard of review, rather than a deferential one which would take the state’s professed objectives at face value. It thus found that bearing in mind the design of Japan’s programme, its minor scientific output etc,  it was not set up for the purposes of scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling permits and refrain from authorizing new ones under the current whaling programme.

The judgment summary is available here, the judgment itself and a number of separate opinions here. We will have more coverage of the case in the week to come.

 

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EJIL Vol. 25, Issue I: In this Issue

Published on March 31, 2014        Author: 

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

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

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

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

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

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

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Announcements: BIICL Course on Public International Law; 21st C Borders Conference;

Published on March 30, 2014        Author: 

1. The British Institute of International and Comparative Law (BIICL) will be running a short course from 29-30 April 2014 entitled, Public International Law in Practice. The dynamic, two-day programme will be focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Participants will be provided with a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international resolution of disputes, from human rights to international investment law.  Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early and middle years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, those in moving legal practice areas, and students who are studying for a postgraduate degree which includes aspects of international law. This course is unique in that it introduces participants to public international law as it arises in practice in a concise and engaging way. The course fee is £375 (incl VAT) and it is accredited with 14.5 CPD hours. Find out more and book online here.

2. Call for Papers: Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with shifting balances of international power. This was seen most dramatically in the recent Russian annexation of the Crimea and its connected repudiation of uti possidetis that underpinned statehood in the former Soviet Union. In East Asia tensions remain high in sovereignty disputes over islands and maritime delimitation. Renewed attempts to reach a settlement between Israel and Palestine similarly turn on the crucial issue of borders. In addition to these, a number of other states have been involved in long-running boundary conflicts. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. We welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers j.summers {at} lancaster.ac(.)uk. The deadline for abstracts is 20th April 2014.

 

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Crimea and (the Lack of) Continuity in Russian Approaches to International Law

Published on March 28, 2014        Author: 

On 27 March 2014, the UN General Assembly adopted a resolution calling upon states not to recognize changes in status quo of Crimea region. 100 states voted in favor, 11 were against and 58 abstained. In terms of international law, Ukraine’s continued sovereignty over Crimea is supported by the absolute majority of states, even though Crimea is now de facto annexed by the Russian Federation. In this post I want to make two points: one concerning the Russian scholarship on international law and the second on the history of Russia’s treaty practice regarding Crimea.

The first point is that the annexation of Crimea by the Russian Federation goes against pretty much everything that has been written in Russia over the last twenty years (plus during the Soviet period) on the legality of the use of military force and the right or peoples to self-determination in international law in non-colonial contexts. Suffice it to say that the Concept of the Foreign Policy of the Russian Federation, approved by President Putin on 12 February 2013, emphatically criticizes and condemns the use of military force outside the framework of the UN Charter.

My comment focuses on the Russian scholarship of international law because its most prominent representatives have until now argued that, in international law, the principle of state sovereignty clearly trumps the right of peoples to self-determination. (See e.g. I.I. Lukashuk, Mezhdunarodnoe pravo. Obshaya chast’ (2001), 280, 300; V.I. Kuznetsov, B.R. Tuzmukhamedov (eds) Mezhdunarodnoe pravo, 2nd ed. (2007), 215; G.G. Shinkaretskaya, ‘Polozhenie fakticheski sushestvuyushikh rezhimov (nepriznannykh gosudarstv)’, in: A.G. Lisitsyn-Svetlanov (ed.) Novye vyzovy i mezhdunarodnoe pravo (2010), 168-172; A.Ya. Kapustin (ed.) Mezhdunarodnoe pravo (2008), 105; A.A. Kovalev, S.v. Chernichenko (eds) Mezhdunarodnoe pravo, 3rd ed. (2008), 58.)

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New Issue of EJIL (Vol. 25: No.1) Out Next Week

Published on March 28, 2014        Author: 

The latest issue of the European Journal of International Law will be published at the end of next week. Over the course of next week, in advance of the publication of the new issue, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents of the next issue of EJIL:

Editorial

The International Society for Public Law – Call for Papers and Panels; Van Gend en Loos – 50th Anniversary; Vital Statistics; Roll of Honour; Quantitative Empirical International Legal Scholarship; In this Issue

EJIL: Keynote Debate!

Daniel Bethlehem, The End of Geography: The Changing Nature of the International System and the Challenge to International Law

David S. Koller, The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Carl Landauer, The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Articles

Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Christopher Wadlow, The beneficiaries of TRIPS: Some Questions of Rights, Ressortissants and International Locus Standi

Revisiting Van Gend en Loos: A Joint Symposium
with the International Journal of Constitutional Law (I·CON)

JHH Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy

Eyal Benvenisti and George Downs, The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions Read the rest of this entry…

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Human Rights Committee’s Concluding Observations on the United States

Published on March 27, 2014        Author: 

Our friends at Just Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:]  Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’  and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

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