EJIL Vol. 30 (2019) No. 3: In this Issue

The first section of this issue includes three articles. The first article, by Paz Andrés Sáenz de Santa María, examines the treaty-making practice of the European Union (EU) from an international law perspective. Contrary to the view that international treaty law is ill-suited to deal with distinct legal actors such as the EU, this article shows that international treaty law has been a useful and flexible mechanism to fulfil the objectives of the EU’s external relations. At the same time, EU treaty-making practice and adjudication have contributed to the development of international treaty law. The article highlights the main features of this mutually constructive relationship, while also pointing to some challenges that need to be addressed.

The second article, by Vera Shikhelman, assesses the implementation of the decisions of the United Nations Human Rights Committee (HRC) in individual communications. Drawing on an analysis of original empirical data, the article identifies the main factors that influence state compliance with HRC decisions. Arguably, these findings can also shed light on state cooperation with other international human rights institutions.

In the third article, Máximo Langer and Mackenzie Eason challenge the prevailing perception that universal jurisdiction is in decline. They conduct a worldwide survey to show that universal jurisdiction has actually been invisibly but persistently expanding in terms of quantity, frequency, and geographical spread. They then suggest some explanations for this trend and assess its merits and pitfalls.

International commissions of inquiry (COIs) represent another key mechanism for addressing serious violations of international law. The second section of this issue features a Symposium, convened by Michael Becker, Doreen Lustig and Sarah Nouwen, that explores the concrete impacts of COIs on the situations with respect to which they were created. In the Introduction, Michael Becker and Sarah Nouwen provide a typology of the ways in which international COIs can make a difference and also discuss some challenges to the empirical study of COIs.

The rest of the Symposium examines the actual effects of COIs in three case studies. Eliav Lieblich focuses on the 1957 United Nations Special Committee for the Problem of Hungary. Operating in complex Cold War circumstances, this committee was never meant to curtail human rights violations in Hungary, nor was it expected to diminish Soviet Union interventionism. Nonetheless, as Lieblich shows, the committee did have various indirect, unpredictable, and ultimately conflicting political and institutional effects.

Hala Khoury-Bisharat reaches similar conclusions with respect to the 2009 United Nations Fact-Finding Mission on the Gaza Conflict. She observes that within Israeli society this commission caused a severe backlash against human rights organizations, which were accused of cooperating with the commission and nurturing its criticism of the Israeli government. However, rather than entirely disempowering these organizations, the domestic backlash led to an increase in their international funding. These unexpected outcomes demonstrate the mixed effects that COIs can have in deeply divided societies.

Finally, Mohamed Helal discusses the mixed impact of the 2011 Bahrain Independent Commission of Inquiry. On the one hand, the commission instigated some reforms in the Government of Bahrain and helped mitigate political tensions in the aftermath of the Arab Spring protests. On the other hand, the Government has failed to fully implement the commission’s recommendations, especially those relating to accountability for human rights abuses.

Our Roaming Charges contribution in this issue takes us to the Mekong River in Southeast Asia and tells a story of hardship and survival more clearly than words can.

Thereafter, this issue features two EJIL: Debates! Jeffrey Kahn analyses the intricate and strained relationship between the European Court of Human Rights (ECtHR) and the Constitutional Court of the Russian Federation in light of a recent federal law which expands the Russian Court’s jurisdiction to deny effect to judgments of the Strasbourg Court. He finds that this not only challenges the dynamic conception and construction of the Convention but also undermines the final authority of the ECtHR. In his Reply, A. Blankenagel disputes this alleged challenge by providing both a doctrinal analysis as well as strategic reasons for the Russian approach.

The second debate examines the relationship between populist governments and international law. Heike Krieger contends that populist governments promote an instrumentalist perception of international law, which reduces the role of international law to serving national interests, and which favours international coordination over cooperation. In reply, Marcela Prieto Rudolphy questions the very attempt to identify a (single) populist approach to international law. She also challenges the claim that populism moves international law toward a ‘law of coordination’, and that this is necessarily a bad thing. Paul Blokker similarly calls for a richer and more empathetic understanding of populism and its approach to law. In particular, he emphasizes the popular sovereignty and the constituent dimensions of populism, as well as the contested nature of the progressive narrative of international law.

This issue closes with an article that reanimates our classic rubric A Fresh Look at an Old Case. Amedeo Arena delves into the history of the EU’s most famous case: Costa v. ENEL. (see Roaming Charges: Moments of History.) Based on previously undisclosed materials and interviews, he traces the obscure history and context of this peculiar case regarding a petty energy bill that has become the Union’s equivalent to Marbury v. Madison.

The review section features four pieces that engage with a highly diverse set of books on aspects of international law and governance. We begin with a review essay by Sahiba Gill, Edouard Adelus and Francisco de Abreu Duarte, which looks at recent general works on FIFA and the governance of global football: perhaps an unusual choice, even for EJIL readers accustomed to looking beyond the main genres of (international) legal literature; but one that we hope will raise awareness of FIFA’s problematic resistance to change. (For more, take a look at the short introduction to the essay).

This issue also includes three shorter reviews of recent works. The first is Roger O’Keefe’s review of The Trial of the Kaiser, William Schabas’ account of an early experiment with international criminal justice and part of a new genre of books on international law and its history aimed at non-specialists. This is followed by Anna Chadwick’s review of Neoliberal Legality, a collection of essays edited by Honor Brabazon that seeks to identify the role of international law in the (allegedly anti-regulatory) neoliberal project. In the final review, Richard Gardiner, author of Treaty Interpretation, assesses Between the Lines of the Vienna Convention?, an edited volume by Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis, who discuss ‘Canons and Other Principles of Interpretation in Public International Law’ — the bread and butter of international legal practice

Antjie Krog’s haunting poem, Litany, written in 1996 during the first Truth and Reconciliation hearings in South Africa, produces strong and reverberating echoes with our Commissions of Inquiry Symposium and concludes our issue on the Last Page.