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Vital Statistics; Time for Change – With Thanks to Guy Fiti Sinclair

Published on May 6, 2018        Author: 
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Vital Statistics

Each year we publish statistics on the state of our submissions: where submissions originated, which were accepted, and which were published in EJIL during the previous 12 months. We do this to observe and understand any changes that may be taking place in submission and publication patterns in our Journal and to keep our authors and readers informed of such.

The final selection of articles published in EJIL is determined by two principal considerations: quality is, naturally, one of these. All published articles go through our double-blind peer review process. We do not put the finger on the scale when it comes to national or geographic origin of the article, gender and other such factors. We look for excellence: articles we hope will be read, recalled, referred to and cited in years to come.

The second consideration is curatorial. EJIL is not a mere refereeing service. We publish between 40-60 articles per year. We receive anywhere between 5-10 articles per week. We receive many more excellent articles that are worthy of publication than we are able to publish, given considerations of space. Choices have to be made. Our curatorial decisions aim to produce issues of interest to a wide variety of readers, covering different areas of international law, different approaches to scholarship, and the like. EJIL Talk! is an integral part of EJIL and its coverage is part of the mix we consider. Thus, in the initial screening by the editorial office we may reject articles simply because we have published recently on the topic, or there might be something in the pipeline and other similar considerations. We also engage in some ‘agenda setting’ by initiating debates and from time to time commissioning symposia generated by our own Boards or accepting symposia proposed by others. Finding the right balance is always a delicate curatorial decision and the figures are fluid. In recent years we have privileged unsolicited articles, given the growing number and quality of submissions. In 2017 we published fewer commissioned symposia in our four issues than in previous years: unsolicited manuscripts accounted for 76 per cent of our published pages, whereas in previous years it had been around 65 per cent. Read the rest of this entry…

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EJIL Vol.29 (2018) No. 1: In This Issue

Published on May 4, 2018        Author: 
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The overture for the 29th volume of EJIL is conducted by Eyal Benvenisti, whose Foreword article opens this issue. Benvenisti aims to determine the role of global governance today in view of the challenges presented by new information and communication technologies. In his view, the task has shifted, or rather expanded, from simply ensuring the accountability of global bodies to upholding democracy and protecting dignity. As with previous Foreword articles we have published, Benvenisti’s article takes stock of an important field of study in international law, and is sure to set the agenda for that field in the coming years.

The following articles in this issue share a retrospective dimension. Wolfgang Alschner and Damien Charlotin undertake the arduous task of analysing almost seven decades of jurisprudence of the International Court of Justice regarding its increasing self-referentiality. Intriguingly, they find that the growing complexity of the Court’s self-citation network is both a vice and a virtue. This empirically grounded and institution-centric endeavour is followed by an article by Hendrik Simon, which takes an almost deconstructivist approach in reexamining one of the most prominent and provocative doctrines in the history of international law. By shedding light on forgotten disputes in 19th-century international legal discourse on justifying war he demystifies the doctrine of liberum ius ad bellum. Ignacio de la Rasilla del Moral complements this section with aretro-introspection. Given the upcoming 150th anniversary of academic publishing in international law periodicals, he examines the history of international law journals from the mid-18th century until today, concluding with thoughts on certain contemporary features such as digitalization, linguistic monopolies and specialization.

The next set of articles focuses on International Economic Law. Sungjoon Cho and Jürgen Kurtz identify the distinctive historical paths and multiple intersections of international investment and trade law from a common origin to divergence and reconnection. In their view, this pattern of convergence and divergence is not limited to historical development but can also be traced to common challenges deriving from balancing market goals and public interest. Christopher Vajda explores mechanisms of dispute resolution in a variety of international economic agreements of the EU, and distils from this comparative exercise the importance of a direct effect whilst pointing to some deficiencies concerning the agreement with Canada.

Roaming Charges takes us to Manila where public transport can be unique experience.

In this issue, and over the next three issues of EJIL, we will mark the four-year centenary of the Great War with a four-part symposium on International Law and the First World War. Each part of the symposium will explore different aspects of international law’s relationship to the global conflict. We begin in this issue with ‘International Law before 1914 and the Outbreak of War’. Following Gabriela Frei’s Introduction on international law and the ‘great seminal catastrophe of the 20th century’, Jochen von Bernstorff explores the largely unregulated employment of violence and international law before 1914 by differentiating between order-related and ontological justifications.

This issue closes with two Critical Review articles. 

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Je Suis Achbita!

Published on February 19, 2018        Author: 
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Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess. Read the rest of this entry…

 

A propos Book Reviewing

Published on February 17, 2018        Author: 
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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.

 
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10 Good Reads 

Published on February 17, 2018        Author: 
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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 Roll of Honour

Published on February 16, 2018        Author: 
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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.

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EJIL: In This Issue

Published on February 16, 2018        Author: 
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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…

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Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 
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The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges. Read the rest of this entry…

 

EJIL: In this Issue (Vol. 28 (2017) No. 3)

Published on November 7, 2017        Author: 
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This issue opens with three articles addressing trade and investment in international law from different perspectives. In a valuable and timely contribution to the literature on the interpretation of investment treaties, Andrew Mitchell and James Munro consider whether the use of a third-party agreement in interpretation constitutes an erroneous application of the customary rules of treaty interpretation in the Vienna Convention on the Law of Treaties. Gracia Marín Durán then explores the respective responsibility of the European Union and its member states for the performance of World Trade Organization obligations, proposing a ‘competence/remedy’ model to help untangle this delicate question. And Sergio Puig and Anton Strezhnev investigate the legitimacy of international investment law, based on an experimental survey of 266 international arbitrators, concluding that there is strong evidence that arbitrators may be prone to the ‘David Effect’ – a relative bias to favour the perceived underdog or ‘weaker’ party when that party wins, through reimbursement of their legal costs.

The next set of articles in this issue focuses on human rights, with particular attention to the European Court of Human Rights (ECtHR). Merris Amos examines the continued value of the ECtHR to the United Kingdom, illustrating what might happen if the UK were to withdraw from the Court. Susana Sanz-Caballero investigates the scope of applicability of the nulla poena sine lege principle before the ECtHR, looking especially at the decisions in Kafkaris and del Río Prada to highlight the Court’s increasingly flexible approach to the concepts of penalty, foreseeability and enforcement of penalty. Oddný Arnardóttir argues that the Court has effectively used the margin of appreciation to engender an erga omnes effect for its judgments through the principle of res interpretata. Vera Shikhelman offers a fresh, empirical look at the work of the United Nations Human Rights Committee, exploring whether geographical, political and cultural considerations correlate with the voting of committee members. Lastly, Thomas Kleinlein addresses an important development in the ECtHR jurisprudence, positing that the Court’s legitimation strategy – comprising European consensus and the new procedural approach to the margin of appreciation – enhances the potential for democratic contestation and deliberation.

Roaming Charges in this issue takes us to the Negev Desert in southern Israel, where the photographer, Emma Nyhan, poignantly captures the ‘outsideness’ of a cultural minority, the Bedouins.

This issue features a lively EJIL: Debate!, centring on an article by Jonathan Bonnitcha and Robert McCorquodale, which addresses the concept of ‘due diligence’ in the United Nations Guiding Principles on Business and Human Rights. The authors criticize the uncertainty caused by two different concepts of due diligence invoked by the principles and suggest an interpretation of the Guiding Principles that clarifies the relationship between these concepts. John Ruggie (the author of the Guiding Principles) and John F Sherman, III, respond to the article, questioning the interpretive approach adopted by Bonnitcha and McCorquodale. The authors then offer a rejoinder. Read the rest of this entry…

 
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On My Way Out – Advice to Young Scholars V: Writing References

Published on July 6, 2017        Author: 
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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 fifth instalment and regards that staple of academic life: writing references.

If you are at the beginning of your career as a teacher it is likely that until now you have mostly been the recipient of references rather than the writer of such. Let us separate the writing of references for entry-level candidates seeking an initial teaching appointment or for colleagues in the process of tenure or promotion from references for students seeking admission to graduate programmes, which is likely to be the bulk of your reference writing. I do write references from time to time – though, as you will see, I am quite circumspect in accepting to do so. But since I have, throughout my career in the United States, been involved almost without interruption in the direction of graduate programmes at three major universities (Michigan, Harvard and NYU) I must have read – no exaggeration here – thousands of reference letters for potential masters’, doctoral and postdoctoral candidates. And though you are likely to think that the following is hyperbole, I will state here too, with no exaggeration, that a very large number of these references were worthless or close to worthless.

The following is a generalization, meaning that there are plenty of exceptions, but academic (and public life) culture are hugely impactful in determining the quality of a reference. In many Continental European countries and in many Asian countries – some more, some less, there are also North–South variations – it appears that who writes the reference seems to be more important than the content of such. Applicants will go to great lengths to receive a reference not from the Assistant, or Privatdozent or Maître de Conference etc. with whom there may have actually been a much closer intellectual and academic relationship but from a ‘famous’ professor or judge on the Supreme or Constitutional Court and not infrequently even ministers and the like. It must be a spillover from a more general culture of the labour market. Since the who is more important than the what, the content of these references is predictably short and vacuously laudatory. The ‘big name’ might have scant knowledge of the candidate and in a more or less subtle manner the burden of the reference is ‘You should admit X because I (the big name) think you should.’ Often you can tell that the candidate himself or herself had a hand in drafting the reference. One tell-tale sign is similar phraseology in the reference and the personal statement of the candidate. This scandalizes me less than you might imagine, since it is so often the case that the structure of legal education in many of these countries, with large classes and frontal teaching, means that the professor has, at best, a superficial knowledge of the applicant. What can he or she write? This is typically true of Central and South America too. Read the rest of this entry…

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