EJIL Editorial Vol. 21:2 “In this Issue”; “Book Reviewing and Academic Freedom”; “The Last Page

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Four very different articles flesh out this second issue of our 21st volume. First is an article by Christopher Macleod on Crimes against Humanity. The Editors believe that our readers will enjoy this valuable philosophical account of the subject. Next is a detailed article by Marco Dani entitled, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’. Our third article by Monica Hakimi, ‘State Bystander Responsibility’, provides a fresh take on a much-discussed topic – offering a new generalized framework for conceptualizing the responsibilities of states for protecting persons from third party abuses. We have published several articles on this theme and will continue to do so for some time. It reflects our belief that we are in the midst of an important shift in the concept of State Responsibility. A shift from from primarily negative to positive obligations, from State Responsibility to the Responsibility of States. Neither state practice, nor the theoretical and conceptual contours of this shift have been sorted out. But EJIL is one place where the ‘basic science’ is taking shape. Hakimi’s paper suggests, inter alia, an important analogy between state bystander responsibility and our expectation that states respond to gender-based private acts of violence, an analogy we consider pertinent and illuminating. Last, we have an article by Santiago Villalpando which tackles the ever-important question of how we might conceive of an ‘international community’ and its status under international law.

International governance is another of our commitments rooted in the belief that it provides a more potent tool both analytically to understand and normatively to critique a host of international phenomena. Under this iteration of our occasional series, Critical Review of International Governance, we include pieces by colleagues in Ethiopia, China and Malaysia. First is a piece by Dereje Zeleke Mekonnen on the Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘Water Security’ paradigm. Second is an article by Kong Lingjie on data protection and transborder data flow in the European and global context. Last, we have a piece by Gurdial Singh Nijar entitled, ‘Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects’. We expect that you will find each piece both unique and also valuable to broader discussions on international governance.

Book Reviewing and Academic Freedom

My deep thanks for the hundreds of letters of support and indignation. All letters of support, including the many we received from editors of learned journals, have been translated into French and will be submitted to the Court. The Trial takes place on 25 June. I will report to our readers here on this blog.

Editor’s note: The hearing of the case has been postponed, for technical reasons, to January 20, 2011.

The Last Page

In ‘The Last Page’, EJIL’s reminder that there is more to life than law, you will find a poem by Jake Marmer, entitled ‘When an Immigrant’.

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Aravind Ganesh says

September 6, 2010


Thank you for a most entertaining editorial piece. I nevertheless find myself compelled to make the following remarks.

You are certainly correct in observing that there is a surfeit of human rights rhetoric in Europe, and I might even be inclined to agree with you that it masks deficiencies in democratic processes. Now, it might not have been entirely aesthetically pleasing to have ended a piece containing these observations on rightsspeak with a vote of thanks to those who defended your right of academic freedom, but that is a minor issue.

Where I think, with respect, that you make a mistake, is when you say that the Individual does not suffer from a lack of rights protection in Europe. The word “individual” must be taken to include immigrants, both legal and il-, and if this is done, we must be alarmed at such things as the FRONTEX scheme, by which illegal immigrants intercepted at sea are simply dumped in a cooperative third country; i.e. Libya. This highly hidden and secretive programme is Europe’s very own Guantanamo Bay. The problem with rights rhetoric (the “blah blah blah”) is not that it is superfluous, but that it distracts us from very real and grave violations.

I am also skeptical about your notion of solidarity, civic duty and responsibility. It is certainly true that levels of voluntarism and charitable giving are lower in Europe than in America. But is that not perhaps because the need for such virtues is correspondingly less? Is that necessarily a bad thing? Charity and fraternity are all well and good, but is it really just and fair for the question of whether a homeless person eats or starves, to depend on whether someone feels like being nice to him on that particular day? You presumably do not wish to coerce fulfillment of the responsibilities people have towards their societies – that would be the same thing as taxation. Are the 30 million Americans who (as you observe) go without healthcare, likely to feel be consoled by the fact that they live in a more fraternal society, as measured by levels of charitable giving and voting?

Your depiction of the situation in Greece and Germany is also curious. It may be useful to refer, at this point, to the current debate on Social Security in the US. Over there, social security “entitlements” (because workers paid into those funds with money that they actually earned) are likely going to be cut because the $2.5 billion surplus it had accumulated has been spent by the Bush and Obama administration on bailing out banks that had run themselves into the ground. The situation is broadly the same in Europe. The earnings of millions of workers have thus been appropriated and given over to rentiers, and you propose to assign “responsibility” to those workers.

Lastly, your saying in effect that banking sector reform is the new anti-semitism, is utterly fantastic, and I wish to say no more than that it is utterly fantastic.

Aravind Ganesh