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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: 
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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: 
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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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EJIL Vol. 29 (2018) No. 2: In This Issue

Published on July 23, 2018        Author: 
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This issue of EJIL opens with a selection of articles that share a focus on human rights. Itamar Mann analyses the infamous trope of ‘legal black holes’ and deploys it to examine the ignominious failure to end mass drownings of migrants and refugees. In his view, the apparent rightlessness of maritime migrants is fundamentally different from other forms of rightlessness since it is not brought about by a violation of international law but is rather created by and deeply entrenched in it.

Following, Leora Bilsky and Rachel Klagsbrun focus on another form of egregious rightlessness: genocide. While the original conception of this crime was essentially cultural, the Genocide Convention does not reflect this. The authors examine the factors that led to the exclusion of cultural genocide from the Convention and outline its countermeasure – cultural restitution.

David Kosař and Jan Petrov shift the perspective from open wounds and scars of international law to issues of compliance. Using the Czech Republic as an object of analysis, they present valuable insights on factors determining compliance and non-compliance with international human rights rulings as well as variable levels of their implementation.    

Devika Hovell concludes this section by focusing on the fundamental question of universal jurisdiction. She strips away the often obfuscating technical aspects of jurisdiction to reach the very essence of this concept by examining both its sources as well as its legal-political dimensions. Read the rest of this entry…

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A Court that Dare Not Speak its Name: Human Rights at the Court of Justice

Published on May 7, 2018        Author: 
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Editor’s Comment: The adequacy of the ECJ jurisprudence in the area of human rights has been the subject of extensive critical comment in recent times, not least since its much commented upon decision in Opinion 2/13. I have invited one of the most authoritative, knowledgeable and sober voices in the EU law interpretative community, Daniel Sarmiento to contribute a Guest Editorial on this topic. We are honoured to publish it in this issue. 

‘We are not a human rights court.’ This phrase has been repeated over and again by judges and advocates general of the Court of Justice of the EU for many years. To the question of why does the Court not rely more on Strasbourg case law on human rights in the field of, say, competition, the reply was a classic: ‘we are not a human rights court’. If the Court was accused of ignoring international human rights instruments in cases with a strong tie with international law, the response sounded familiar: ‘we are not a human rights court’. If human rights were put aside or restricted in the name of free movement rules, the explanation was always ready to go: ‘we are not a human rights court’.

Indeed, the Court of Justice was not designed in its early days to be a human rights court, but its current role as the lead player of the European judicial landscape has put it in an unprecedented situation. There is no area of policy that escapes the scrutiny of the Court of Justice: the digital world has found in the Court an uncompromising upholder of private life that will not tolerate intrusions in the sphere of individuals’ privacy; the effectiveness of asylum policy depends on the Court’s readiness to interpret asylum rules as procedural or substantial guarantees in light of human rights; consumers throughout the continent rely on the Court’s judgments to rule on how banks, digital titans or retailers treat their clients; criminal procedures have come under the umbrella of EU harmonization instruments, putting the Court in a privileged position to set standards and guarantees of criminal procedure in all Member States.

These are only a few examples of how the Court has been transformed from a modest international jurisdiction into a supranational hegemon, whose decisions have a direct and significant impact on the rights and lives of millions of Europeans. Read the rest of this entry…

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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. 

Read the rest of this entry…

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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…

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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…

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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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