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In this Issue

Published on February 19, 2016        Author: 

This issue opens with an article that is sure to provoke discussion and perhaps disagreement. Yishai Beer argues that the principle of necessity should be understood as constraining military action, particularly when infused with the standards of a modern professional military. We continue with three articles focusing on the European Court of Human Rights. In the first, Helen Keller and Cedric Marti propose a novel framework for understanding – and further enhancing – the more assertive stance of the Court, during various phases of its work, in ensuring the implementation of its judgments. The next article, by Anna Dolidze (who was recently appointed the Deputy Minister of Defence of Georgia), examines the Court’s borrowing of the amicus curiae participation procedure from the UK, and offers a theory of the conditions under which such internationalized legal transplants may take place. The third article, by Mathias Möschel and Ruth Rubio-Marín, considers how the Court’s jurisprudence has been distorted by what they call the ‘Holocaust Prism’, through which the Court views and responds to cases involving racial discrimination. Rounding out the main Articles section in this issue is a piece by An Hertogen, which argues that the well-known ‘Lotus principle’ reflects a misreading of the majority opinion in that landmark case, and should be re-cast in a manner that is more compatible with contemporary needs.

The first entry under our new rubric, For the Classroom, is an article by John Morss on the claims to statehood under international law of the Vatican/Holy See. In For the Classroom we select articles on discrete classical areas of International Law whose subject matter, comprehensiveness and quality make them particularly suitable for teaching purposes. Read the rest of this entry…

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Roll of Honour

Published on February 18, 2016        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 2015.

Philip Alston, Alberto Alvarez-Jimenez, Dia Anagnostou, Stelios Andreadakis, Helmut Aust, Lorand Bartels, Arnulf Becker Lorca, Gary Beckman, Andrea Bianchi, Tomer Broude, Congyan Cai, Iris Canor, Patrick Capps, James Cavallaro, Damian Chalmers, B. S. Chimni, Ioana Cismas, Matthew Craven, Luigi Crema, Robert Cryer, Sophia Dawkins, Gráinne de Búrca, Janina Dill, Jeffrey Dunoff, Angelina Fisher, Caroline Foster, Michelle Foster, Rosa Freedman, Mónica García-Salmones Rovira, Geoff Gilbert, Guy Goodwin-Gill, Monica Hakimi, Gerd Hankel, Laurence Helfer, Kevin Heller, Florian Hoffmann, Yann Kerbrat, Jan Komárek, Dino Kritsiotis, Andreas Kulick, Jürgen Kurtz, Isabelle Ley, Paolo Lobba, Benoît Mayer, Christopher McCrudden, Frédéric Mégret, Sonia Morano-Foadi, Martins Paparinskis, Joost Pauwelyn, Jacqueline Peel, Niels Petersen, William Phelan, Eric Posner, Heather Roff, Cecily Rose, Arie Rosen, Cedric Ryngaert, Margaret Satterthwaite, Martin Scheinin, Bas Schotel, Yuval Shany, Henry Shue, Gerry Simpson, Bart Smit Duijzentkunst, Gila Stopler, Stefan Talmon, Christian Tomuschat, Anna Triandafyllidou, Nicholas Tsagourias, David Victor, Jochen von Bernstorff, Wouter Werner, Ramses Wessel, Andrew Williams, Reinmar Wolff.

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On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap

Published on February 18, 2016        Author: 

Do you ever have the feeling that simply too much is getting published these days? That one simply cannot keep up with it all, that things would be a lot better if less were published, not least because then there would be a greater chance that what we ourselves publish, never too much of that, of course, would get noticed?

Technology has certainly increased academic productivity, as it has increased productivity elsewhere. It is easier to do research (so long as the sources are digitized and searchable), to write, to cite, and to publish. The number of legal journals has exploded, increasingly in online form, driven at least in part by the lower entry barriers, set up and distribution costs for publishers as well as the scandalous profits they make from journal publication. And then, of course, there is self-publishing. In the world of literature, when an author self-publishes it is called vanity publishing; in academia it is called SSRN. I say this tongue in cheek, of course, but grant me it is something of a mixed blessing. Democratization of publishing has increased (good); discernment has diminished (less good).

Not surprisingly, everybody is so busy writing these days, publishing, self-publishing and then self-promoting (attaching links to one’s own recent publications at the end of every email has become more the norm than exception) that hardly any time is left for reading. By this I mean serious, reflective reading and not simply picking up a few citations to put in what I happen to be writing, which, if lucky (very lucky), will be read by others in the same cursory manner. But then who cares as long as my piece ends up being similarly cited?

I read. A lot more than I write, and not only because I have aged and have, even in my own eyes, less interesting things to say and certainly less time to do research. Read the rest of this entry…

Filed under: Editorials, EJIL

In this Issue

Published on November 6, 2015        Author: 

This issue opens with a brace of articles on topics relating to the treatment of alternative dispute resolution in international institutional settings, albeit from quite different perspectives. Jaime Tijmes introduces the possibility of using final offer arbitration to settle disputes in the World Trade Organization, and explores how it might best be introduced. In contrast, Lorna McGregor uses the jurisprudence of the European Court of Human Rights to consider the kinds of tests that supranational bodies should and do use to determine the compatibility of a particular dispute resolution process with the right of access to justice.

In Roaming Charges, we feature a photograph by Janet McKnight of Places of Impasse: Scars on Beirut Structures That Refuse to Fall. We encourage our readers to submit photographs for publication to ejil {at} eui(.)eu.

The issue continues with two entries under our regular rubric, EJIL: Debate!. In the first, Catharine Titi argues that the European Union is in the process of introducing a new model of investment treaty that is ‘set to change the face of international investment law as we know it’, while in his Reply Martins Paparinskis introduces a note of caution regarding methodology, as well as a note of scepticism regarding Titi’s conclusions. The second EJIL: Debate! in this issue opens with an article by Devon Whittle, which applies Oren Gross’ ‘extra-legal measures model’ to conceptualize the UN Security Council’s Chapter VII powers as a form of emergency powers. In his Reply, Gross expands upon Whittle’s proposal to consider the application of the same model to another issue in international relations, namely unilateral humanitarian intervention. We invite comment on both debates on our blog, EJIL: Talk! Read the rest of this entry…

Filed under: Editorials, EJIL, EJIL Analysis
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The EJIL App (again)

Published on November 5, 2015        Author: 

I want to remind all our individual subscribers – for example all members of ESIL – of the possibility of installing the EJIL App and downloading EJIL to your tablet (both Apple and Android devices).

In a random survey we discovered that a large number of our subscribers, even those receiving the hard copy of EJIL, mostly access the Journal in its digital version online. The App offers two major advantages. The whole issue downloads to your tablet and you can then access it whether online or not. (Maybe I spend too many hours on airplanes and overrate this advantage.) The other advantage is that one clearly gets a much better sense of the issue as a whole, with the ability to browse through and skim even those articles you are not going to read in depth. An issue of EJIL is not a collection of articles simply waiting their time in the queue to get published. We curate each issue with care, like the construction of a satisfying meal with different courses. One also gets a better sense of our huge investment in the aesthetics and form of the Journal.

It is worth a try. Here, again, are the technical details:

  1. Make sure you have your OUP customer ID number. Contact our Managing Editor if you do not have one.
  2. Register at You will be asked to enter your customer ID number, register your email address and create a password.
  3. The site will authenticate you as a user. You can then download the app from the appropriate App Store and enter your registered email address and password at the login page.

If you experience any problems do not hesitate to email our Managing Editor, Anny Bremner, at ejil {at} eui(.)eu.

Filed under: EJIL Analysis


Published on November 4, 2015        Author: 

I invited our Book Review Editor, Professor Isabel Feichtner, to write a Guest Editorial, which was published on the blog in July. As the reader will immediately note it would have been foolish, given the circumstances addressed in that Editorial, to wait for the next issue of EJIL and so I proposed that it be posted immediately on EJIL: Talk! where it was widely read and justly applauded. Given its importance, going well beyond the so-called Greek Crisis, we republish it in the current issue of the Journal as an official EJIL Editorial – which of course, as is the case with all Editorials in this Journal, represents the views of the author, not of EJIL as such.

It is our hope that this Editorial will stimulate a broader discussion on our role as international lawyers in today’s world of politics. To this end, let me make an open call for contributions, to the Journal and to EJIL: Talk!, on the role of international law scholarship in making sense of questions of how the refugee crisis, austerity politics, megaregionals, security politics, and so on interrelate, and how we as international lawyers can usefully intervene.

Filed under: Editorials, EJIL, Financial Crisis
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In this Issue

Published on September 8, 2015        Author: 

This issue of EJIL offers another rich and varied menu of first-class international law scholarship. The issue opens with an important article by Bernard Hoekman and Petros Mavroidis, who make the case for reconsidering current WTO policy on plurilateral agreements. Weighing up their pros and cons, they conclude that such agreements offer an important mechanism, as an alternative to preferential trade agreements, for subsets of WTO members to move forward on issues of common concern. The second article in the issue, by Kirsty Gover, tackles the complexities of indigenous-state relationships in western liberal settler states, presenting a compelling theoretical analysis of the relationship between constitutional rights protection in those states and their obligations under on the UN Declaration on the Rights of Indigenous Peoples. Next, Ilias Bantekas sheds light on a fascinating and under-examined aspect of international legal history: the influence of Ottoman law as a source of general principles of law in post-Ottoman territories, specifically in relation to the international law of cession. Turning from imperial history to present-day global governance, Oren Perez’s innovative and carefully researched article examines the tensions arising from the hybrid political-legal and epistemic authority exercised by transnational regulatory scientific institutions. Finally, Stefan Talmon offers an acute analysis of the International Court of Justice’s methodology for determining the existence, content and scope of the rules of customary international law that it applies. Having distinguished the circumstances in which the Court applies both inductive and various forms of deductive reasoning, Talmon argues that in fact the main methodology employed by the Court is simple assertion.

The third annual Junior Faculty Forum for International Law, held at Melbourne Law School in July 2014, once again attracted an exceptionally high calibre of scholarship, and we are delighted to publish three pieces that were originally presented at that event. In his article on internet freedom, Daniel Joyce draws on historical experience and contemporary debates to explore the argument that the internet may require human rights protection beyond freedom of expression. Ilias Plakokefalos examines the problem of over-determination in the law of state responsibility, suggesting that the growing complexity of inter-states relations necessitates a rethinking of the fundamentals of this area of law. And Guy Fiti Sinclair proposes a new analytic framework for understanding the growth of international organizations as intimately linked with the cultural processes of state formation, with both impelled by a dynamic of liberal reform that is at once internal and external to law.

Roaming Charges in this issue leaves today’s world, crossing generations and time to recall our intellectual heritage. We are publishing the title page of Hans Kelsen’s doctoral thesis, the subject of which may come as a surprise to many of our readers.

This issue sees the return of our regular series, Critical Review of International Governance, with an article by Sungjoon Cho and Thomas H. Lee on the problem of parallel adjudication of a single issue, by the same parties, but in different legal systems.

The Last Page features a poem in French by Ekaterina Yahyaoui Krivenko entitled ‘Schizophrénie du droit international’.

Filed under: Editorials, EJIL

On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

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 do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…


The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal

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The Spitzenkandidaten Exercise One Year Later – The Unsung Hero

Published on September 7, 2015        Author: 

A year has gone by since the last elections to the European Parliament. One significant innovation in those elections was the Spitzenkandidaten exercise.

At the recent fifth edition of the ‘State of the Union’ organized by the European University Institute I conducted a public interview with Vice President of the European Commission Franz Timmermans.

Vice President Timmermans and I reached the point where we touched on that perennial topic of the still existing deficiencies of European democracy, resulting, inter alia, in widespread indifference as expressed in the low turnout to the last European elections – 2014 scored the lowest turnout ever.

Here is an edited transcript from the interview.

Weiler:  […]  Part of the problem is that when people go and vote for  the European Parliament, they are not really being offered a real political choice (the way, for example, yesterday they were offered in the United Kingdom – Labour or Conservative.), neither as regards the policies that will be pursued nor as regards who will govern them. So the delicate question is whether the Union in its processes needs to become overtly more political? Do you think the bold, even though limited, experiment of the last elections to the European Parliament with the ‘Spitzenkandidaten’, who delivered here in this space [the Salone dei cinquecento of the Palazzo Vecchio] one of the televised debates, should be pursued and perhaps deepened as one of the ways of addressing that problem of citizen disengagement?

Timmermans:  Yes, first of all … the core of the problem also refers to one of my favourite authors, Hannah Arendt, who … actually, if you bring back the essence of some of her writings [says] ‘ It is not the anger of the minorities that hates us, it is the indifference of the majority that makes things difficult’: and here we have a problem at the European level because institutions that are made to represent the people through direct democracy, or like the Commission through other means, are very often very, very far removed from the political perceptions of the citizens. There is no (not yet) European ‘demos’, European political focal point, and we will need the engagement at the national level to make sure that we will bring people closer to what is European decision-making; so the odd contradiction between … there are …. there is the ‘supernational’ level and there is the national level, and what we are doing is trying to take away from one, or trying to resist taking it away from one … We are in this together! The only way forward is for national governments and leaders to take the responsibility for the European project, and stop blaming Europe for everything that goes wrong and taking credit for everything that goes right; and we at the European level should indeed, I think, be more focused towards making our institutions more political.

I was myself sceptical of the ‘Spitzenkandidaten’ idea, right?  I criticized it publicly several times and I am happy to admit it here today… I was wrong! Because of the Spitzenkandidaten idea, we now have a President of the Commission who is not appointed by consensus in the European Council, but who was appointed and elected by the European Parliament, by a political process. The European Council had to accept that political process; it makes the President of the European Commission far more independent than I have seen in the past. And Jean-Claude Juncker is a political leader who takes this very seriously indeed, and you can see this in the dynamic between the Commission and the European Parliament, between the Commission and the European Council … Let me just refer to what Jean-Claude said about migration;  this was not consensual language as far as the European Council is concerned.  He took his position in a political way; he took his leadership role in a very straightforward way and gave us a leadership role in the migration debate.

Weiler: Ladies and gentlemen, it is not every day that you sit next to a politician who is willing to say ‘I was wrong!’

Read the rest of this entry…