EJIL Vol. 30 (2019) No. 2: In this Issue

This issue opens with three articles that address underexplored corners of international law. The first article focuses on the topic of customs unions. Adopting a historical perspective, Michal Ovádek and Ines Willemyns identify gaps and ambiguities in the contemporary legal definition of custom unions. They then conduct a comparative analysis to examine how different custom union agreements address these ambiguities. They observe that the design and performance of these agreements is affected by concerns over state sovereignty. Finally, they draw lessons for a possible post-Brexit EU-UK agreement regarding customs.

The second article, by Miles Jackson, discusses instigation to commit wrongful acts. He argues that contrary to the common perception, international law does include a general prohibition on instigation. In accordance with this prohibition, a state that induces or incites another state to breach its international obligations may be held responsible for an internationally wrongful act. According to Jackson, the prohibition on instigation is founded on a general principle of law accepted in many domestic jurisdictions, which should be transposed to international law.

Paolo Amorosa then explores a forgotten episode in the well-studied history of the international legal struggle for women’s equality. Whereas the common narrative dates the beginning of this struggle to the aftermath of World War II, Amorosa traces its roots to the signing of the Equal Nationality Treaty and the Equal Rights Treaty at the 1933 Montevideo Conference. In so doing, he takes a step towards the re-inclusion of early feminist activists in the dominant history of international law.

Following, we feature a profound exchange on the question of ‘hospital shields’ and international humanitarian law. Neve Gordon and Nicola Perugini analyse the history of hospital bombings, identify numerous legal justifications for such attacks due to the alleged shielding of military targets, and argue for an absolute protection of medical units. Yishai Beer, professor of law and former Israeli army general, questions this proposal. He argues that such an absolute ban is neither feasible nor desirable. In his opinion, it would damage the current balance and rationale of international humanitarian law.

The next section of this issue examines the learning and teaching of international law, featuring two empirically-based studies on the pedagogical aspects of international law. Ryan Scoville and Mark Berlin evaluate possible explanations for the variation across states in the compulsory study of international law. They find that legal tradition is the most important determinant of the compulsory study of international law, whereas other factors such as the strategic interests or socio-political conditions of states do not play a significant role. These findings suggest opportunities for educational reform, and they also bear implications for the comparative study of international law.

The next article by Sondre Torp Helmersen shifts the focus from learning to teaching. Helmersen asks how the International Court of Justice identifies ‘the most highly qualified publicists’ whose teachings should serve as a complementary source of international law according to Article 38(1)(d) of the ICJ Statute. He finds that the Court takes into account the quality of the work, the expertise and official positions of the author(s), and agreement between multiple authors.

Roaming Charges in this issue invites readers to reflect on the continuing crisis and contestation in the European Union with a photograph entitled ‘Do Not Discard’.

In the next section, we feature a symposium on International Law and Economic Exploitation in the Global Commons. Following the Introduction by Isabel Feichtner and Surabhi Ranganathan, Matt Craven traces how the law on outer space was designed to prevent it becoming a place of warfare or the object of colonization, appropriation or primitive accumulation resulting in rational irrationalities of Cold War commons.

Surabhi Ranganathan shifts the focus from the sky to the sea and sheds light on how the interplay between national jurisdiction and international administration has led to ocean floor grab. She shows that the regimes created qua the constitutive effect of law and with the help of international lawyers cater only to a few.    

Isabel Feichtner, in her contribution, examines the relationship between the principle of common heritage of mankind and the fiscal regime of deep seabed exploitation as well as its transformation over time. Karin Mickelson concludes the symposium, scrutinizing whether and to what extent the principle of common heritage of mankind can limit the exploitation of the global commons.

Cosette Creamer and Zuzanna Godzimirska conclude this issue with a contribution in our Critical Review of Jurisprudence section. Based on interviews with court officials and surveys with government agents, they analyse trust (building) in international courts and shed light on the important role of the registry of the European Court of Human Rights.

On The Last Page we publish Friedrich Schiller’s Hymn to Joy. While he himself self-critically qualified his appraisal of global brotherhood as flawed and ‘detached from reality’, the poem later became world-renowned due to Ludwig van Beethoven’s avail in the fourth movement of the 9th Symphony, which ultimately was adopted as the Anthem of Europe – discarding Schiller’s lines.

Continuing the celebration of EJIL’s 30th anniversary, coinciding with the 30th anniversary of the fall of the Wall, click the URL and sense audio-visually the historic moment when musicians from the United Kingdom, USA, Russia, France as well as East and West Germany performed Beethoven’s 9th Symphony, conducted by Leonard Bernstein, in East Berlin at Christmas 1989, transforming the ‘ode to joy’ into an ‘ode to freedom’ (Ironically at that very moment the original music score – recognized in the UNESCO Memory of the World Register – was still divided precisely at measure 699 (‘Be embrac’d, ye millions yonder’), with half of it deposited in East Berlin and the other half in West Berlin).