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The European Dream Team

Published on February 12, 2019        Author: 

There will be a major ‘Changing of the Guards’ next year with the departures of Juncker, Tusk and Draghi – each of them remarkable in their own way – from the leadership team of the European Union. The incoming team will be facing a Europe that poses unprecedented challenges. Commissioner Oettinger went as far as characterizing Europe as facing ‘mortal danger’ from both within and without. I don’t exactly share the doomsday predictions as regards the Union, but the international and internal challenges are truly immense and require leadership commensurate with such.

Here is my Dream Team to lead the Union in the face of these challenges:

President of the Commission: Frans Timmermans

President of the Council: Angela Merkel

President of the European Central Bank: Christine Lagarde

At this point many readers might be chortling. Not because they necessarily disagree that this would be a formidable team to face off the likes of Trump and Putin, Salvini and Orbán. Or to face the truly daunting socio-economic challenges of the Union. But rather because it seems to defy any realistic vision of the European politics of appointments. Does it really? Suspend your disbelief for just a while. Read the rest of this entry…

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EJIL Roll of Honour

Published on February 12, 2019        Author: 

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 2018:

Dapo Akande, Karen Alter, Tilmann Altwicker, José Alvarez, Alberto Alvarez-Jiminez, Maria Aristodemou, Loïc Azoulai, Björnstjern Baade, Lorand Bartels, Eyal Benvenisti, Eric Brabandere, Eva Brems, Carl Bruch, Michelle Burgis-Kasthala, Laurence Burgorgue-Larsen, Julian Chaisse, Damian Chalmers, Hilary Charlesworth, Vincent Chetail, Sungjoon Cho, Carlos Closa, Lawrence Collins, Marise Cremona, Philipp Dann, Kevin Davis, Alex De Waal, Erika De Wet, Bruno De Witte, Rosalind Dixon, Megan Donaldson, Rochelle Dreyfuss, Christoph Engel, Eleanor Fox, Francesco Francioni, Ronald Francis, Geoff Gilbert, Kirsty Gover, Gerhard Haffner, Michaela Hailbronner, Jeffrey Handmaker, James Hathaway, Laurence Helfer, Ellen Hey, Bernard Hoekman, Stefan Inama, Aline Jaeckel, Henry Jones, Daniel Joyner, Victor Kattan, Thomas Kleinlein, Michele Krech, Claus Kress, Andreas Kulick, Jürgen Kurtz, Tobias Lenz, Randall Lesaffer, Itamar Mann, Nora Markard, Petros Mavroidis, Franz Mayer, John McCrudden, Frédéric Mégret, Paul Mertenskötter, Timothy Meyer, Angelika Nussberger, Christiana Ochoa, Alexander Orakhelashvili, Stefano Osella, Diane Otto, Sundhya Pahuja, Jacqueline Peel, Steven Peers, Oren Perez, Niels Petersen, Marcela Prieto Rudolphy, Alexander Proelss, Sergio Puig, Kate Purcell, Surabhi Ranganathan, Kal Raustiala, Anthea Roberts, Nicole Roughan, Ruth Rubio-Marín, Tom Ruys, Marco Sassòli, Cheryl Saunders, Abdulhay Sayed, Stephan Schill, Edward Schramm, Joanne Scott, Ayelet Shachar, Kirsten Schmalenbach, Yuval Shany, Dinah Shelton, Vera Shikhelman, Philip Steinberg, Paul Stephan, Thomas Streinz, Péter Szigeti, Paulos Tesfagiorgis, Christian Tomuschat, Michael Trebilcock, Charles Tripp, David M. Trubek, Gus Van Harten, Jorge Viñuales, Andreas von Arnauld, Jochen von Bernstorff, Tania Voon, Michael Waibel, Rüdiger Wolfram, Margaret Young, Eyal Zamir, David Zaring, Andreas Zimmermann.

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EJIL Vol. 29 (2018) No. 4: In this Issue

Published on February 11, 2019        Author: 

On 9 December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide – the first universal treaty of human rights – was adopted by the United Nations General Assembly. This year marks its 70th anniversary and we pay tribute to its ‘founding father’, Raphael Lemkin, in this last issue of EJIL for 2018. Johann Justus Vasel preludes with a biographical vignette. In Roaming Charges we reproduce his recently discovered death certificate, and on the Last Page we feature a previously unpublished poem by Lemkin on the subject that haunted and drove him, ‘Genocide’. (We thank members of Raphael Lemkin’s family – Jane Lemkin, Peter Lemkin and Richard Lemkin – and friend, Nancy Steinson, for their kindness and generosity in sharing information with us.)

Jan Klabbers formally opens this issue with his Keynote Address on ‘Epistemic Universalism and the Melancholy of International Law’, delivered at the 2018 annual conference of the European Society of International Law, in which he diagnoses pathologies of international legal scholarship.

In our Afterword rubric, Lorna McGregor and Lorenzo Casini react to the EJIL Foreword ‘Upholding Democracy Amid the Challenges of New Technologies: What Role for the Law of Global Governance?’ by Eyal Benvenisti, published in our first issue of the year, and Benvenisti replies to his critics.

Following, we shift the focus to ‘New Voices’, with a selection of articles from the Sixth Annual Junior Faculty Forum for International Law. Veronika Fikfak, analyses how damages awarded by the European Court of Human Rights impact states’ behaviour. Drawing on (behavioural) economic analysis of law, she suggests new approaches on how to increase compliance. An Hertogen illuminates the conditions for analogical reasoning between domestic and international law. Ntina Tzouvala scrutinizes the dissolution of the Ottoman Empire and the emergence of statehood in the Balkans, tracing the ambivalent role of international law in constructing and containing ethnic nationalism. Building on Giorgio Agamben’s work, Daria Davitti, challenges the EU’s Agenda on Migration, contesting liquid, biopolitical borders and the evasion of international obligations by claiming an alleged state of exception resulting in mere humanitarian posturing of EU migration policies. Geoff Gordon reflects on the interrelationship between colonial practices, the global standardization of time, and transnational law. Read the rest of this entry…

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A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 

The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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Favourite Readings 2018: Nine Good Reads and One Viewing

Published on December 14, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. We are starting off the small series with selections from our Editor-in-Chief,  Joesph Weiler.

For the first time I have managed to prepare my Good Reads to post on EJIL:Talk! well before Christmas. I publish my pick from some of the books that have come my way during the past year. 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.

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001) 

My German readers will be shaking their head in some wonderment: Marcel Reich-Ranicki? Him again? An autobiography from 1999 of a person who died in 2013? Did he not speak enough about he, him and himself during his lifetime so as to last a few lifetimes? My non-German speakers will be shaking their heads with a different wonderment: Marcel Reich who?

But then, consider that when published this book was the no. 1 best-selling book in Germany for 52 weeks. Must be something there, no? Read the rest of this entry…


A Second Brexit Referendum – What Makes You Think They Will Have You Back?

Published on November 26, 2018        Author: 

The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

Read the rest of this entry…


Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities

Published on November 8, 2018        Author: 

Item: EJIL and I.CON, like most of their peers, used to classify article submissions into three categories: Accept, Revise and Resubmit, and Reject. In recent times, a good few years now, we have added what we call ‘Category 4’. It happens increasingly that on the first screening of an article we come to seemingly contradictory conclusions. On the one hand, the piece may be striking in any number of ways: the choice of topic, the originality of the principal argument, the novel empirical data therein. On the other hand, our accumulated experience tells us that it will never pass peer review, not even the Revise and Resubmit threshold. It is simply too rushed and hence too raw. That’s why the Category 4 was invented. An encouraging letter is sent to the author indicating that we believe there is much promise in the piece but it requires a general overhaul before the specific road map, which is the hallmark of a good Revise and Resubmit peer report, can take place: more research, more depth in developing arguments, more attention to counter arguments, more care in expressing them, etc.

Item: In preparing a tenure review report, or assisting in an entry-level appointment process I read the file – a dozen articles or so. One is strikingly good. A handful, truly mediocre. One or two, real garbage. From the same hand, from the same mind. How so uneven? We cannot be at our best in everything we put out, but I am talking discrepancies that go beyond that standard distribution.

Item: I’m a commentator in our post-doc workshop. I later meet with the young scholar to give detailed comments and suggestions for the work. You’ll need, I say, a good few months, maybe half a year’s more work to produce what could become a splendid piece. The post-doc looks at me forgivingly: ‘It won’t happen. My dean expects us to publish seven pieces (!) in two years. I have to move on.’ This ‘quota’ may be at the higher end but is not atypical. I later see the piece, in its original form, on SSRN and eventually in some journal. Read the rest of this entry…

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EJIL Vol. 29 (2018) No. 3: In This Issue

Published on November 7, 2018        Author: 

This issue of the European Journal of International Law features prominently the theme of ‘Perpetrators and Victims of War’.

We open the issue with a series of articles focusing on International Criminal Law. Sofia Stolk starts off by shedding light on the construction of an ‘ideal perpetrator’ – a ‘sophisticated beast’ in international criminal law trials – to allow both accountability and condemnation. A complementary perspective is put forward by Christine Schwöbel-Patel, who analyses the social, political and legal construction of the ‘ideal victim’. Following, Line Gissel scrutinizes Africa’s support for the International Criminal Court (ICC) between 1993-2003. Alexandra Adams concludes this section with an examination of the legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and their contributions to the intricate definition of rape.

In the next section, we feature the penultimate instalment of our Symposium on International Law and the First World War, focusing in this issue on the end of the War. Randall Lesaffer retraces the development of aggression as a concept of international law, showing that a long history of thought on use of force law preceded the Versailles Peace Treaty. Markus M. Payk analyses the Paris Peace Settlement after the Great War, examining the impact that notions of law, justice and legality had on the negotiations leading to the Settlement in the Allies’ quest to establish the ‘reign of law’.

Roaming Charges features a photograph of the stunning relief found in Wroclaw by the local sculptor Eugeniusz Get Stankiewicz: ‘The Crucifixion – Do It Yourself’. We are all perpetrators is one lesson one may take from this work of art. Read the rest of this entry…

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Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System

Published on July 25, 2018        Author: 

The international trading system is not just about trade in which the only calculus of its worth and importance can be measured in the growth (or otherwise) of aggregate welfare, economically speaking. Since trade, in goods and services, is the principal modality of transnational intercourse, the international trading system and the legal system which undergirds it, reflects and constitutes the concomitant principal modus operandi of peacetime international relations. It is based on a respect for multilateralism and the rule of (international) law. That modus operandi radiates into other spheres of international cooperation, contributing ultimately to stability and peace. For some, on both right and left, it greases, too, the wheels of ‘globalism’, ‘the reign of capital’ (‘capitalism’ as an expression is somewhat out of fashion) and I have even seen the spectre of ‘international financiers’ being resurrected. But be as it may your view of these assorted alleged vices or virtues, I think there is a broad consensus that one should be careful not to throw the baby – multilateralism and the rule of law – out with whatever dirty bathwater within the system is not to your liking.

However, it is just this that is unfolding in front of our eyes. In trying to redress what he believes are ‘horrible’ terms of trade to which his country, the USA, had given its consent and enshrined in binding international legal instruments, Mr. T. and his crew seem almost more interested in throwing the baby out than cleansing what he considers is the dirty bath water.

Thus, for example, the WTO dispute settlement is slowly being asphyxiated by an American strategy of blocking appointments to the Appellate Body – the de facto World Trade Court. The by now infamous imposition of tariffs on certain steel products and the threats of doing likewise on trade in automobiles (there will be no Mercedes Benzes on 5th Avenue! – not such a bad outcome if it means their replacement by the ever fresh Fiat 500) is illustrative. In both cases the formal justification offered is ‘national security’. This is a black lie if ever there was one. Yes, legal terms, like beauty, are often as elastic as the beholder wishes them to be. And with that reasoning just about any weakening of the trading position of a state may be reducible to a threat to national security. I will not waste my and your time in explaining that this is not what the national security clause is about, though I feel some compassion for the young lawyers in the American government service who were required to write learned disquisitions and briefs trying to justify this legal construct. We all know what it is really about. Read the rest of this entry…

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Authors of EJIL – Customer Care

Published on July 24, 2018        Author: 

Try as hard as we may, it often takes months to get a publishing decision from EJIL. The bottleneck is, in most cases, the peer review process of which you have read my laments on more than one occasion. Let me say straight away that peer reviewing is a fundamental and immensely valuable part of journal publishing. It not only helps us in our publication decisions but our authors receive constructive comments, which enable them to improve their articles and for which they are, without exception, grateful. We, in turn, are incredibly grateful to our colleagues in the international law community who regularly or irregularly take on the somewhat thankless task of peer reviewing (though perhaps seeing a significantly improved piece in print does provide a measure of thanks).

As important and valuable as peer reviewing is, the process is often as unpredictable as the weather in spring. It might take weeks before we manage to assemble the peer reviewers (we get many refusals; and potential peer reviewers do not always reply instantly to our request) and then, as you know from your own experience, good intentions come up against the realities of academic life one constant of which is always to be late in submitting something promised. Have you not sometimes thought that the flows of our professional life resemble managing a perennial overdraft in the bank?

We have revised our procedure in one small but critical sense which, we hope, will be welcomed by our authors. As I have explained on more than one occasion, the first step in considering a manuscript is a careful read by the ‘in-house’ editorial team, who decide whether or not the submission should be sent to peer review. As I have also explained more than once, there can be many reasons apart from quality that may underlie a decision not to send out to peer review. EJIL is a general interest IL journal and we build our issues with the aim of appealing to a wide readership. Each article we publish means the rejection of another article which could be of similar intrinsic quality. For example, we may not wish to publish in one year five articles on, say, customary law, or proportionality, or investment arbitration, even if each of the five would be of publishable quality. Read the rest of this entry…

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