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EJIL Editorial Vol 21:1- In this issue . . .

Published on June 1, 2010        Author: 

We begin this issue with a symposium to honour one of our Founding Editors, Professor Antonio Cassese, who recently celebrated his 70th birthday. Many happy returns.  We publish five short pieces on the role that public international law plays and can play in the protection of individuals, a topic of abiding concern to Nino. From a variety of perspective our writers, Giorgio Gaja, Christian Tomuschat, Andrew Clapham, Luigi Condorelli and Francesco Francioni each provide tribute by providing insight in this particular area of international law.  We extend warm thanks to Paola Gaeta, an EJIL Editorial Board member, for Guest Editing this symposium.

In our articles section you will find a trenchant piece by B.S. Chimni – ‘Prolegomena to a Class Approach to International Law’ –with a distinct and challenging theoretical voice.  Next, we have an article by Mario Mendez entitled, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’, which suggests that a ‘twin-track’ approach to treaty enforcement is developing in the European Community.  We turn then to two pieces which engage with fresh questions concerning international humanitarian law.  We hope you will read these articles by Katherine Del Mar and Carlo Focarelli as logical extensions of the symposium in this issue.  Our final article by Roozbeh Baker addresses an ever fresh topic: ‘Customary International Law in the 21st Century: Old Challenges and New Debates’.

As part of our occasional series – Critical Review of International Governance – we publish a piece by Milagros Álvarez-Verdugo  which investigates the relationship between climate change and the Non-Proliferation Treaty. Life continues even after the Copenhagen farce.

In an earlier editorial, we encouraged review essays which cover a variety of texts on a single topic.  In this issue we include a good example of an insightful review essay by Lindsey Cameron and Rebecca Everly on territorial administration.

The Last Page features a poem by Laura Coyne entitled ‘Market Fictions’ – food for the soul.

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Editorial – Vol. 20, Issue 3

Published on October 22, 2009        Author: 

The ‘Lisbon Urteil’ and the Fast Food Culture

The outcome was not a surprise. ‘Yes’ to the LisbonTreaty with some (arguably trivial) tinkering with internalGerman procedures. The naïve might have expected somethingelse: after all, some of the statements of that same court inits highly problematic Maastricht decision could have been construedas pointing towards a different, negative, result. But in itsinternationally-related case law, the German ConstitutionalCourt has a well-earned reputation of the Dog that Barks butdoes not Bite. There would be, as the more jaded court watchersamong us confidently predicted, lengthy ‘humming and hawing;’some high sounding and biting criticism of certain democraticdeficiencies of the Union and its Institutions; heavy breathingabout the German Court’s constitutional responsibilities andimportant guardianship role. But in what we may now call theregular ‘Karlsruhe Miracle’, the pig would finallybe pronounced Kosher – as indeed turned out to be thecase. Despite its history of self-important ‘so long as…’ style rhetoric, of all the Member State courts andtribunals, it would not be the German Constitutional Court whichwould take it upon itself to derail the process of Europeanintegration in so important a case, no matter how inimical thatprocess might be to its understanding (whether right or wrong)of democratic and civic propriety. (The dog might well bitein the pending Mangold case – and if it does the feelingof many is that it will be an injury the ECJ gratuitously broughtupon itself and the Union.)

What of the content of the decision? Courts, especially supremecourts, do have institutional identities into which their transientlyserving members mould themselves. But we should not overdo thisform of reification. The quality of reasoning and the ostensibleand implicit Weltanschauung of any given case are a reflectionof the actual individuals who make up the chamber which handsdown the decision. In this particular case, the compositionof the deciding ‘Senate’ is as expected -some truly outstanding jurists, one or two about whose intellectualsuitability for such high judicial office one might wonder,and the rest with more than adequate competence – as isthe case with most of our European high courts. So no surpriseshere either: a mixed bag. A decision with lights and shadows,some conflicting tendencies, some painful displays of shallownessand lack of political imagination, and some veritable soaringpassages and profound reflection. Read the rest of this entry…

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New Issue of EJIL [Vol 20 (3)] out

Published on October 22, 2009        Author: 

The latest issue of the European Journal of International Law has been published and is available here and here. This is Issue 3 of Volume 20. Readers will remember that the current volume of EJIL celebrates the 20th Anniversary of the Journal. In each issue of this volume, there is an anniversary article as well as a symposium which focusses on themes or issues where there has been significant change in international law over the past twenty years. In this issue the Anniversary article is by Anne Peters, Professor of Public International and Constitutional Law at the University of Basel and is titled “Humanity as the Alpha and Omega of Sovereignty”. The Symposium is on Globalization. In addition to these features, and others, this issue also contains two EJIL:Debates – one on the Kadi case and the other on “Soft Law”. The editorial by Professor Joseph Weiler (see here) elaborates on the pieces contained in this issue of EJIL.

The full table of contents is as follows: Read the rest of this entry…

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New Issue of the European Journal of International Law out: Further Discussion of Articles to follow here on this blog!

Published on April 14, 2009        Author: 

The latest issue of the European Journal of International Law has recently been published. This is Volume 20, No. 1. In his editorial, Professor Joseph Weiler (Editor in Chief) reflects on the founding of the Journal 20 years ago and on developments over the first 2o years of EJIL. He also points out that the current Volume of EJIL will be an anniversary volume with anniversary symposia on carefully selected topics in each issue of this volume. The table of contents of the current issue is as follows:

Special Anniversary Article
Martti Koskenniemi, “The Politics of International Law – 20 Years Later

Changing Paradigms in International Law: A Symposium
Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”
Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law”
Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”
Martin A. Schain, “The State Strikes Back: Immigration Policy in the European Union”

Article
Marc Weller, “Settling Self-determination Conflicts: Recent Developments”

EJIL: Debate!
Mónica García-Salmones, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply to Rosie Cooney and Andrew Lang”
Andrew Lang & Rosie Cooney, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Rejoinder to Monica Garcia-Salmones”

Critical Review of Jurisprudence: An Occasional Series
Pasquale De Sena & Maria Chiara Vitucci, “The European Courts and the Security Council: Between Dedoublement Fonctionnel and Balancing of Values”

Abstracts of all of these articles and full texts of some are available, free of charge, on the website of the journal.

One of the purposes of this blog is provide a forum for the discussion of scholarship published in EJIL. To that end we will, in the coming days and weeks, be hosting online symposia on the articles published in this issue. The purpose of these online symposia is to facilitate engagement with and conversations about the work published in the journal. We will invite particular scholars to comment on the articles published in the journal. However, we very much encourage readers to take part in this conversation by providing comments on work published in the journal or on the comments made on those articles.

This week, we will host the EJIL: Debate! between Mónica García-Salmones on the one hand and Rosie Cooney  and Andrew Lang  on the other hand on the topic of “Taking Uncertainty Seriously: Adaptive Governance and International Trade”.

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Editorial: EJIL Vol. 19:5

Published on January 13, 2009        Author: 
Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,1 Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.2 Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

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  1. Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. []
  2. Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. []
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