EJIL: In this Issue (Vol. 28 (2017) No. 1)

This issue opens with the third entry under our annual rubric, The EJIL Foreword. In keeping with the rubric’s mission statement, Laurence Boisson de Chazournes takes a broad and sweeping view of the proliferation and consequent pluralism of international courts and tribunals. In doing so, she argues that an ‘overarching managerial approach’ may be observed in various practices of both judicial and state actors, and notes still other methods that could strengthen this approach.

The next three articles in this issue address the processes of international law-making from a variety of perspectives. In the first regular article, Florian Grisel assesses the top-down processes informing transnational governance. Grisel utilizes the example of the drafting of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the involvement of the International Chamber of Commerce experts to illustrate how transnational expert networks can contribute effectively to the process of treaty-making. Taking on the involvement of non-state actors from another perspective, Nahuel Maisley argues that Article 25(a) of the International Covenant on Civil and Political Rights should be interpreted as giving civil society groups a right to participate in international law-making. In their article, Armin von Bogdandy, Matthias Goldmann and Ingo Venzke then address the implications of the proliferation of international institutions, advancing a theory of ‘public international law’ which regards such institutions as exercising ‘international public authority’ and seeks to take account of world public opinion in enhancing their legitimacy and effectiveness.

In a shift of topic, Natalie Davidson revisits the seminal Alien Tort Statute cases of Filártiga and Marcos. In exploring the historical narratives produced in these two cases, Davidson’s article seeks to challenge some of the sanguine assumptions of international human rights lawyers and lay bare the ‘deep foundations of violence’ in the international system and US foreign policy. Relatedly, Alejandro Chehtman examines the moral and legal permissibility of the use of remotely piloted aircraft systems, challenging the intuitive view that the use of drones will contribute to making the use of force proportionate in a wider set of circumstances.

Roaming Charges in this issue pictures a place, within a thriving metropolis, where solitude is more common than connection.

This issue features an EJIL: Debate! centring on an article by legal philosopher Liam Murphy addressing a series of questions where legal philosophy meets ‘Law Beyond the State’. The dialogue begins with a Reply from Samantha Besson, focusing on the role of consent in international law. Nehal Bhuta’s Reply reconstructs the argument from Murphy’s article, and the larger work from which it is drawn, and develops a criticism of his argument about the duty to obey international law. Christoph Möllers argues that Murphy seems to have ‘missed the decisive point’ in the recent development of international law, and expresses doubt that legal philosophy could cast light on the fragmentation debate in international law’. Lastly, Jochen von Bernstorff focuses on Murphy’s discussion of the role of positivism and non-positivism in international law and his application of Dworkinian jurisprudential insights to international legal norms such as the prohibition of the use of force. Liam Murphy offers a Rejoinder to the reactions provoked by his article.

The articles in this issue close with a Critical Review of International Governance piece by Michelle Zang, examining the relationship between the Court of Justice of the European Union and the Dispute Settlement Mechanism of the World Trade Organisation.

We move away from our customary poem in The Last Page in this issue to reprint an excerpt from an interview with the late Adrienne Rich, who for many years was a prominent and politically engaged poet in the USA. She thoughtfully answers the very pertinent question: Does poetry play a role in social change?