I am sure that many of our readers have their own views on their preferred international legal journal. But it is hard for me to believe that there will be many who do not assign pride of place to EJIL’s Book Review section under the editorship and curatorship of Isabel Feichtner. In the selection of books for review, in the rigour imposed on reviewers, in the exploration of different forms for featuring books she has made EJIL second to none. Isabel Feichtner is stepping down as Book Review Editor, though happily she will remain a member of the Board of Editors. She deserves our deep gratitude. Christian Tams has generously agreed to take over from her. We wish him every success.
It is the time of the year once more when I publish my pick from some of the books that came my way since my last ‘Good Reads’ listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyse or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading. They are listed in no particular order, except for the first one which is definitely my choice for the year.
Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred A. Knopf, 1982-2012)
I have a certain passion for political biography and like to think of myself as something of a connoisseur. Why it has taken me so long to finally sit down and read this much acclaimed treatment of Johnson might be because of its daunting length. A fifth and final volume covering his post-elections years in the Vietnam White House is eagerly awaited and apparently imminent. I am not going to prevaricate with the ‘one of the most’ formula. This is undoubtedly the finest of this genre that I have ever read. For those who might wonder why they should spend precious reading time on Johnson I would like to say that the “years” in the title are not just his years but a political and social history of the USA over half a century. Not many would be willing to set aside time to plough through all four volumes, though they amply repay the effort. But I most strongly recommend, as a second best, to read just Volume 4 (The Passage of Power). It essentially covers the period from Kennedy’s assassination to Johnson’s first year in office. It becomes a microcosm of the Johnson phenomenon. On the one hand, he was undoubtedly, and this is meticulously documented, entirely ruthless and politically (and in some measure financially) corrupt from his early days as a student through his days in Congress until his accidental ascent to the presidency. From those early days one gets the impression of a person interested in power (and winning, winning, winning) for almost its own sake. He understood the power of procedural command from his early elections in college politics until his commanding mastery as Majority Leader in the Senate. And the lessons we as readers learn about congressional politics remain illuminating, even essential, 60 years later, in understanding the tortured relations of, say, Obama and Trump with Congress. I would say an indispensable lesson. You don’t know what you don’t know until you have read such. And, of course, in our minds there is always the Johnson of ‘Hey hey LBJ, how many kids did you kill today’.
Now comes the ‘On the other hand’ which makes both the personality of Johnson so intriguingly complex and our judgment of him so difficult. He grew up in abject poverty – no exaggeration. He pined for the ham sandwich at school but could only afford the cheese one. He and his family literally scratched a living out of the barren soil on which they lived. Like Clinton decades later, he grew up with and alongside a black and Hispanic population in the most natural way. The result was, his greed for power and avarice notwithstanding, a person with a huge and genuine commitment to social justice and, miracle of miracles for a son of Texas, bereft of that visceral racism, not mere disdain for but real disgust towards blacks, which was so present in the South (and not only the South) of that era and indeed has not been fully eradicated today. In his deep feeling for the poor, he made no distinction between black and white. 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 2017:
Ademola Abass, Maartje Abbenhuis, Tawhida Ahmed, Amanda Alexander, Karen Alter, Milagros Alvarez-Verdugo, Dia Anagnostou, Antony Anghie, Kenneth Armstrong, Helmut Aust, Ilias Bantekas, Michael Barnett, Arnulf Becker Lorca, Richard Bellamy, Eyal Benvenisti, Stephen Bouwhuis, Eric Brabandere, Damian Chalmers, David Chandler, Simon Chesterman, Sungjoon Cho, Ben Coates, Matthew Craven, Michael Crawford, Luigi Crema, Kristina Daugirdas, Gráinne de Búrca, Phillip Dehne, Rosalind Dixon, Christian Djeffal, Alison Duxbury, Franco Ferrari, Francesco Francioni, Micaela Frulli, Paola Gaeta, Mónica García-Salmones Rovira, Leena Grover, Jonathan Gumz, Monica Hakimi, Gerd Hankel, Gina Heathcote, Laurence Helfer, Kevin Heller, Caroline Henckels, Gleider Hernández, Loveday Hodson, Bernard Hoekman, Douglas Howland, Isabel Hull, Stephen Humphreys, Ian Hurd, Fleur Johns, Leslie Johns, Ian Johnstone, Heather Jones, Daniel Joyce, Daniel Joyner, Helen Keller, Alexandra Kemmerer, William Keylor, Thomas Kleinlein, Martti Koskenniemi, Sari Kouvo, James Kraska, Samuel Kruizinga, Shashank Kumar, Malcolm Langford, Randall Lesaffer, Mark Lewis, David Luban, Mikael Madsen, Debora Malito, Lauri Mälksoo, Nora Markard, Tanja Masson-Zwaan, Petros Mavroidis, Lorna McGregor, David McGrogan, Campbell McLachlan, Frédéric Mégret, Liam Murphy, Stephen Neff, Vasuki Nesiah, Luigi Nuzzo, Therese O’Donnell, Henrik Olsen, Alexander Orakhelashvili, Sundhya Pahuja, Martins Paparinskis, Andreas Paulus, Joost Pauwelyn, Clint Peinhardt, Victor Peskin, Niels Petersen, Yannick Radi, Surabhi Ranganathan, Morten Rasmussen, Cecily Rose, Cedric Ryngaert, William Schabas, Sibylle Scheipers, Stephen Schill, Thomas Schultz, Christine Schwöbel, Joanne Scott, Gerry Simpson, Sandesh Sivakumaran, Peter Stirk, Oisin Suttle, Katie Sykes, Anastasia Telesetsky, Christopher Vajda, Isabel Van Damme, Antoine Vauchez, Milos Vec, Ingo Venzke, Ana Filipa Vrdoljak, Robert Wai, Andrew Webster, Ramses Wessel, Jason Yackee, Margaret Young, Aldo Zammit Borda.
This issue presents a cornucopia of insights and perspectives on international law. It opens with a pair of articles that reflect EJIL’s long commitment to explore diverse theoretical and methodological approaches. First, Catherine O’Rourke combines theoretical engagement with an empirical, sociological methodology to offer a unique perspective on the engagement of feminist activists with international law. We invite readers to take a look at our EJIL: Live! interview with the author. Second, Anthony Reeves proposes an alternative approach to substantiating the right to punish, focusing on the capacity to respond to the reasons for punishment and analysing universal jurisdiction to show the improvements the alternative model makes.
The next set of articles focus on questions of responsibility. Luke Glanville examines the duty to protect human rights beyond sovereign borders, exploring the thinking of a series of Western natural law theorists both to expose the source of this duty in international law and to retrieve forgotten ideas that might be reconsidered. Sandesh Sivakumaran traces the ‘piecemeal’ emergence of an international law of disaster relief and analyses the general techniques by which this body of law is developing. Lastly, Jan Klabbers investigates whether international organizations can be held responsible under international law for a failure to act, introducing a conception of ‘role responsibility’ to address this thorny issue. We think it is a particularly valuable contribution on a trendy topic the literature on which is often characterized by a lot of hot air.
A selection of articles from the Fifth Annual Junior Faculty Forum for International Law exposes the innovative thinking of a new generation of scholars. Neha Jain considers the role of ‘radical’ dissents in shaping the discourse of international criminal law in the context of mass atrocities. Lawrence Hill-Cawthorne explores the nature of state and individual rights under international humanitarian law, and their relationship to a more general identity crisis in that body of law. Cheah W.L. examines the rule of law dynamics in war crimes trials pertaining to the desertion of British Indian Army soldiers conducted by British colonial authorities in postwar Singapore. Read the rest of this entry…
The latest issue of the European Journal of International Law will be published today. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the new issue. The free access article in this issue is Yahli Shereshevsky and Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts.
Here is the Table of Contents for this new issue:
Je Suis Achbita!; The Trump Jerusalem Declaration and the Rule of Unintended Consequences; 10 Good Reads; A propos Book Reviewing; EJIL Roll of Honour; In This Issue
Catherine O’Rourke, Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions
Anthony Reeves, Liability to International Prosecution: The Nature of Universal Jurisdiction Read the rest of this entry…
The legal protection of multilingualism is an important principle and an indispensable guarantee for the functioning of the institutions of the European Union (EU) as well as for their relationships with EU citizens. This is not only evidenced by Article 22 of the Charter of Fundamental Rights, which obligates the Union to respect linguistic diversity. Beyond that, legally protecting multilingualism is, as the European Parliament stated, “not a matter of communication only, but also a question of democratic legitimacy towards citizens and respect for the cultural diversity of the Member States. It affects the way in which EU legislation is drafted and interpreted”.
Multilingualism is also well established in the EU Treaties themselves, concluded between the Member States in 24 equally authentic languages (Article 55 TEU), which can be interpreted authoritatively by the Court of Justice of the European Union (CJEU) whenever necessary.
The practice of the European Union is quite similar with regard to treaties concluded with non-Member States. In particular, several free trade agreements (FTAs) concluded or negotiated with such states have been drawn up in no less than 23 or 24 equally authentic languages. Read the rest of this entry…
Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean
On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica. The ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)
While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals. In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute. The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages. Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage. These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.
The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.
The Inter-American Court of Human Rights has been very active recently: from hearing a major case on domestic violence; to issuing an advisory opinion on LGBT rights in which it ruled, inter alia (and contrary to the European Court) that the American Convention provides for a right to same-sex marriage, a decision which has polarized public opinion in Costa Rica, in the midst of the presidential election; to another major advisory opinion on environmental protection under the ACHR, including an extensive discussion on the Convention’s extraterritorial application. We will have more detailed coverage of these cases over the next few weeks.
The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate. Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood. Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape. Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.
Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law. Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers. The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention. Read the rest of this entry…