In this Issue; Changes in the Masthead

In this Issue

The first issue of 2021 is dedicated to an EJIL Symposium on International Law and Democracy Revisited. This Symposium is the outcome of a process that began with a Call for Papers issued by EJIL in 2019, marking three decades of EJIL scholarship as well as three decades of ‘International Law and Democracy’ scholarship. The process involved the submission of abstracts and pre-papers; a (non-virtual, pre-Covid!) workshop during which the selected authors presented their papers and received comments from the other authors as well as members of EJIL’s Scientific Advisory and Editorial Boards; and finally, revisions, reviews, more revisions and editing. In this Issue, the ensuing pieces have been distributed over all EJIL’s usual categories: an EJIL: Debate, articles, and critical reviews of jurisprudence and governance.

The Introduction to the Symposium, by Symposium convenors Jan Klabbers, Doreen Lustig, André Nollkaemper, Sarah Nouwen, Michal Saliternik and Joseph Weiler, presents some of the insights that emerged from this process. In particular, it highlights that while the concept of democracy has loomed large in international legal scholarship for many years now, it remains elusive. The early scholarship on international law and democracy could be roughly divided into two strands: one focuses on the extent to which international law requires states to be (in some form) democratic; the other explores the democratic credentials of global governance institutions. The Introduction argues the contemporary scholarship on international law and democracy, at least as represented in this Symposium, is harder to categorise within these two strands, in part because democracy-related concepts such as accountability and participation have taken the front seat.

Following the Introduction, the Symposium opens with an EJIL: Debate!, which goes back to the first decade of scholarship on the extent to which international law required states to be democratic. Akbar Rasulov challenges the opponents of the ‘democratic entitlement’ thesis first put forward by Thomas Franck, arguing that their refusal to acknowledge an international legal right to democracy reflects a deeply flawed epistemological and ideological approach pervasive among international lawyers, which upholds political conservatism in the name of methodological rigour. In reply to Rasulov, Brad Roth argues that rather than reflecting conservative political tendencies, the methodological scepticism towards the democratic entitlement thesis has been animated by precisely the opposite political concern, namely, that the right to democratic governance might serve as a pretext for Western neo-colonialism in a new guise.

In the Articles section, Giacomo Tagiuri sheds light on the pluralizing emancipatory effect of supranational economic law, arguing that, contrary to populist claims, this law bolsters rather than undermines democracy because it forces governments to accommodate a wide range of economic and cultural preferences. Deborah Whitehall revives the historical episode during World War II of a community of French scholars in exile, who flexibly interpreted international norms concerning statehood and state recognition to keep French democracy alive, while France the territory was occupied by Nazi Germany. Jochen Von Bernstorff traces the emergence of a new trend of participation in international institutions by ‘most affected’ people, arguing that while this trend can give voice to those who have been marginalized by NGO-based participation, it is not a panacea for the democratic deficit of global governance. Finally, Barrie Sander juxtaposes an interventionist, structural conception of human rights with a non-interventionist, marketized conception, and contends that (only) under the structural conception can international human rights law mitigate the accountability deficits of social media platforms.

Roaming Charges takes us to a bar in San Juan, Puerto Rico, where we find the barrista alone before his immaculate coffee machine.

In the Critical Review of Governance section, Erika de Wet examines the African Union’s responses to unconstitutional changes of governance. She asserts that the Union’s restrained response in some of these cases entails that it has not yet accepted democratic governance as a binding legal norm. Ayelet Berman examines the World Health Organization’s 2016 Framework of Engagement with Non-State Actors (FENSA) as a possible model for regulating non-state actor participation in international rule-making. She finds that FENSA-like standards can only have limited success, if any, in mitigating capture by private interests.

In the Critical Review of Jurisprudence section, Dmitry Kurnosov examines election cases decided by the European Court of Human Rights in the past three decades. He suggests that in such cases the Court implements a ‘pragmatic adjudication’ approach, which incorporates external considerations into the political dispute before the Court. Matthew Saul assesses another strategy adopted by the European Court of Human Rights, which he terms ‘active subsidiarity’. Focusing on the case of Lindheim and Others v. Norway, he demonstrates how this strategy can incentivize domestic institutions to become more active in fulfilling the objectives of the European Convention on Human Rights

The pandemic tragedy of this past year and the more insidious degradation occurring through climate change is the theme of our Last Page contribution by Jonathan Shaw. The poem encourages us not to stand by and watch, but to act in large numbers.

Changes in the Masthead

Change and continuity, in good measure, enable our journal to thrive with new ideas, new directions and innovations, whilst maintaining our original vision of a journal dedicated to critical and theoretical approaches to international law scholarship with a European orientation. Thus it is that our Editorial Board and Scientific Advisory Board have undergone several changes in recent months.

After serving for many years as our Book Review Editor, and then as a member of our Editorial Board, Isabel Feichtner has decided to move on to new projects. We thank Isabel for her many years of dedicated and committed service to EJIL. Her thoughtful, critical and original voice on the Board will be missed. So too, Veronika Bílková, Enzo Cannizzaro and Hélène Ruiz Fabri have stepped down from the Scientific Advisory Board, and our thanks go to them for their valuable and always constructive contributions to the journal.

We welcome our new Board members. Neha Jain joins our Editorial Board and Tilmann Altwicker, Andrea Bianchi, Megan Donaldson, Agnieszka Frąckowiak-Adamska, Makane Moïse Mbengue, Surabhi Ranganathan and Hélène Tigroudja are our new Scientific Advisory Board members.

Last, but by no means least, our inimitable Associate Editor, Justus Vasel, is stepping down after three years of committed and devoted service to the journal. Justus’ input has gone well beyond that of keeping the EJIL wheels turning. His insight, judgement and thoughtfulness have immensely contributed not only to the academic administration of the journal but also to the development of creative initiatives. Thankfully for us, Justus will stay on as a member of the Scientific Advisory Board and as our Last Page editor. We welcome Orfeas Chasapis Tassinis to the editorial team as our new Associate Editor.