EJIL: In this Issue (Vol. 28 (2017) No. 2)

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This issue opens with a set of articles that address a range of centrally important theoretical and doctrinal issues. The first, by Niels Petersen, addresses an evergreen topic in general international law, which has been the subject of several studies in this Journal over the past few years: the identification of customary international law by international courts and tribunals. Petersen seeks to explain why the International Court of Justice rarely conducts a detailed analysis of state practice in identifying customary norms, by reference to the specific institutional constraints that the Court faces. In our second article, Bernard Hoekman and Petros Mavroidis analyse the ambiguities in scheduling additional commitments for policies affecting trade in goods in the GATT compared to the process under the GATS. Next, Janis Grzybowski offers a novel perspective on the old debate about the identification of states, deconstructing the accepted criteria and provoking deeper reflection on the role of ‘silent ontological commitments’ in legal assessments of statehood. Noëlle Quénivet questions whether international law should prohibit the prosecution of children for war crimes, taking this problem as an opportunity to test some of the basic assumptions underpinning the current law and examining the relationship between restorative, retributive, and juvenile rehabilitative justice mechanisms. The final article in this section, by Yota Negishi, proposes that the pro homine principle should serve as a point of focus – and thereby, also, of harmonization – for both conventionality and constitutionality control exercises undertaken by domestic courts.

The second set of articles forms the Focus of this issue: international legal histories – looking back to the twentieth century. In the first article, Giovanni Mantilla revisits the signing of the 1949 Geneva Conventions by the United States and the United Kingdom. He uses the reasoning of these states for signing as the basis for a reflection on contemporary discussions of treaty commitments and the pressure of social conformity. Next, Narrelle Morris and Aden Knaap present a carefully researched examination of the United Nations War Crimes Commission and its problematic relationship with member nations. Finally, Felix Lange offers a rich account of the discipline of international law in Germany between the 1920s and the end of the Cold War.

In our Roaming Charges contribution, by Viorica Vita, a solitary figure seeks to carve out a living selling love locks on a bridge in Rome.

This issue features an EJIL: Debate! centring on an article by Vladyslav Lanovoy, which addresses the use of force by non-state actors and the ability of the International Law Commission’s Articles on State Responsibility to ensure that states facilitating such conduct face legal consequences. Lanovoy submits that complicity should be used as a test of attribution of conduct when a state contributes to the conduct of a non-state actor that leads to the commission of a wrongful act attributed to the state. In his Reply, Ilias Plakokefalos takes up a series of concerns with the approach taken by Lanovoy, who in turn offers a Rejoinder.

The issue closes with a Critical Review of International Governance article by Moria Paz, examining the ‘law of walls’. Drawing on the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee, Paz argues that human rights courts and quasi-judicial bodies have become deeply implicated in the proliferation of border walls as a strategy of immigration control.

We welcome Gregory Shaffer back to The Last Page with a poem entitled ‘Khundi’, which evokes life, with both its simplicity and complexities, in a corner of the Himalayas.

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