A Less Exclusive Submission Process; In this Issue

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A Less Exclusive Submission Process

Authors who have ever submitted a manuscript to EJIL will invariably describe our peer review system as a lengthy, often protracted, perhaps even frustratingly long process. By its very nature, peer review, when undertaken in a serious and thorough manner, takes time. All manuscripts submitted to EJIL undergo a first in-house screening. Those submissions selected for further evaluation are sent to two or three external reviewers who provide extensive comments. We do not cut corners in order to hasten peer review. At the same time, we fully understand the frustration of authors who anxiously await the fate of their manuscripts. The pressure to publish in a timely manner as well as the desire to see one’s work in print weigh heavily on authors during the review process. Some time ago, we instituted a system whereby authors are notified within six weeks of submission whether their manuscript has been selected for external review. As a further step towards making our review process author-friendly we have removed the requirement of exclusive submission for the first in-house review stage. This means that manuscripts may be submitted to multiple journals. However, authors whose manuscripts are to be sent for external review will be notified and required to withdraw their manuscripts from consideration by other journals. We believe that this will go a long way towards facilitating the submission process for authors whilst maintaining our rigorous peer review process.

In this Issue

The first issue of the new decade opens with a special EJIL Foreword. Whereas each of the first five EJIL Forewords published since 2015 displayed an extensive theoretical analysis written by a distinguished scholar, this year’s Foreword presents a comprehensive set of Guiding Principles on Shared Responsibility in International Law, drafted by a group of distinguished scholars – André Nollkaemper (co-chair), Jean d’Aspremont (co-chair), Christiane Ahlborn, Berenice Boutin, Nataša Nedeski and Ilias Plakokefalos. The Principles, which are accompanied by detailed Commentaries, seek to substantiate, supplement, and adjust the existing rules on international responsibility of states and international organizations, focusing on questions of shared responsibility. We believe that the guiding principles and commentaries, albeit diverging from the usual format of our Foreword contributions, offer a most valuable advancement of the field of international responsibility. As always, the last issue of the year will include critical reactions to this Foreword: the Afterwords.

In the Articles section, Ezgi Yildiz provides a framework for understanding how international courts develop treaty norms. Focusing on the development of the norms embedded in the European Convention on Human Rights by the European Court of Human Rights, Yildiz suggests that the Court has three different complementary characters (arbitrator, entrepreneur and delineator), each of which generates a distinct mode of norm development. We explore her article and her experience in researching and publishing it in an episode of EJIL: Live!

Exploring the work of the European Court of Human Rights from a different perspective, Tilmann Altwicker discusses the strategies that the Court employs to contest the universality of international human rights law. Eyal Benvenisti and Doreen Lustig conclude this section with an alternative historical analysis of the codification of the laws of war in the mid-19th century. Challenging the canonical narrative about the humanitarian sensibilities underlying this process, they argue that the main concern of key European governments that took part in it was to protect themselves from the threat of civil uprisings.

Thereafter the issue features a Focus on Interpretation and Custom. It begins with Danae Azaria, who observes that in recent years the International Law Commission has increasingly engaged with the non-binding interpretation of the international law of treaties. She contends that this practice falls within the Commission’s authority, and that it influences the creation, operation, and termination of treaties across all fields of international law. Kristina Daugirdas argues that international organizations have the capacity to contribute directly to the creation of customary international law. She discusses the possible sources of this capacity and explains the importance of recognizing it. Orfeas Chasapis Tassinis discusses the role that interpretation plays in the identification and application of customary international law. This role, he argues, calls us to rethink the inherent plasticity of customary law and the difficulty of individuating its rules. Jan Klabbers replies to these three articles by emphasizing the need to acknowledge the political dimensions of international law-making.

This year, 2020, marks the 75th anniversary of the liberation of Europe from the tyranny wielded by National Socialist Germany and the subsequent opening of a new chapter in international law. We commemorate this liberation in Roaming Charges and on The Last Page, linked by the epitome of hell on earth. Roaming Charges portrays a photo taken at the death wall in Auschwitz. In place of our usual poem, The Last Page features Theodor W. Adorno’s famous dictum in response to this breach of civilization, which has sparked rich and controversial debates ever since.

In the EJIL: Debate! section, Ivar Alvik argues that recent developments in the protection of foreign investors privilege the latter over domestic investors in a manner that undermines the legitimacy of international investment law. He suggests that a more traditional international minimum standard for the treatment of foreign investment could better balance the need to protect foreign investors and the concern for equality between foreign and domestic investors. Jürgen Kurtz replies to Alvik by suggesting that a political economy analysis that focuses on the risk of hostile state action may provide justification for privileging foreign investors, at least with respect to some categories of investment.

In Critical Review of Governance, Dai Tamada analyses the Timor Sea conciliation between Timor-Leste and Australia. Tamada shows how by ‘setting aside the parties’ legal arguments’, the conciliation process led to the successful settlement of a longstanding maritime boundary dispute.

The following contribution is the first in a series of short essays on the occasion of the important Changing of the Guards that recently took place in the European Union. With three key figures having completed their mandates in 2019, Michael Waibel kicks off this series with an essay on the legacy of former President of the European Central Bank, Mario Draghi.

This issue includes a review essay and three book reviews, emphasizing the continuing relevance of international investment law. In the review essay, Lorenzo Cotulla offers a detailed assessment of two recent works on investment contracts – one of which, Petroleum Contracts and International Law, was written by the late Rudolf Dolzer, a pioneer of investment law who sadly passed away in early April 2020. Continuing with the investment theme, Joshua Paine reviews The Return of the Home State to Investor-State Disputes by Rodrigo Polanco, an in-depth study of new trends in treaty-making. Not all is investment, though. Alina Miron finds much to agree with in two recent works on maritime delimitation and uses her review to offer a précis of the influence of the International Court of Justice on the law in this core field. Finally, we cover Quinn Slobodian’s intellectual history of the rise of neo-liberalism in 20th-century thinking, which Jan Klabbers clearly enjoyed, including its engagement with international law.

 

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