Editorial: EJIL Vol. 19:5

Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,1 Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.2 Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

Fast forward to Kadi: I have no quibble with the material outcome of the review by the ECJ (I am one of the few who found the decision of the Court of First Instance not without problems but very compelling at its core – for reasons which I may explicate elsewhere). But the process adopted by the ECJ is remarkably Medellin-type – a bold and unsophisticated assertion that once within its jurisdictional review, in effect the measures would be ‘Europeanized’ and in reality not treated any differently had they been autonomous measures adopted by the Council of Ministers rather than measures originating from the Security Council. I have seen commentators ‘reading into the decision’ a dialogical element reminiscent of the Solange jurisprudence. Such is beauty that comes from the eye of the beholder, not from the text of the Decision. The opinion of Advocate General Maduro on this issue is an altogether different and more interesting matter. This cannot be the correct way in which supreme jurisdictions should interact with norms originating from the highest organs of the International Legal Order – withdrawing into one’s own constitutional cocoon, isolating the international context and deciding the case exclusively by reference to internal constitutional precepts – a pristine page out of the US Supreme Court approach in Medellin. The European Court would not accept such from Member State courts when dealing with a norm originating from Europe. In the same way, it should not accept such from itself. To avoid any misunderstanding, I do not claim that the result was necessarily wrong, i.e. that one should give the Security Council a carte blanche – it is exactly on this point that the CFI should have acted with more judicial integrity – nor that the type of consideration appropriately to be applied to a Security Council mandate should be the same that a domestic court would apply to a regulation of the Council of Ministers. But the cross-cutting jurisdictions require a different hermeneutic, something, it seems, both the US Supreme Court and the European Court are in need of understanding.

We will be publishing in our next issue a fuller analysis of Kadi and commentary thereon. We invite our readers to make their views known on that article, and indeed on this Editorial, here on our new blog EJIL: Talk!.

Georgia

I have read in the blogosphere and received emails myself claiming that the events in Georgia require a rethinking and rewriting of the laws governing the use of force and the acquisition of territory. I am rather sceptical but would welcome articles arguing the opposite. To me, it is a case of ‘plus ça change, plus ça reste la même chose‘.

But let us first address the depressing politics – this time demoralizing world politics perfectly personified by some celestial Central Casting.

First, the breathtakingly cerebrally challenged Saakashvili, whose every move, including throwing the match into the dry tinder, has militated against his desired entry of Georgia into NATO. The conspiracy minded may well claim that he was a Russian agent. His one redeeming feature were his blustering sophomoric news conferences which supplied relief to a very serious situation – comic relief, that is, provided by the squirming dignitaries forced to stand, ex officio, by his side and suffer each of his ‘I told you so…!’

Then we were treated to a rather new scary spectacle – US officials palpably and transparently aware of their real and perceived weakness, also of their lack of credibility, speaking loudly whilst carrying a broken reed. It is a photo-finish as to which America gives us more of a shiver – blustering, over-confident, but strong, or blustering, under-confident, and weak.

And then there was the redoubtable Sarkozy and Merkel (but hardly Solana…!) making all the right noises of ‘engagement diplomacy’, but unable to paper over the deep internal divisions within the Union, and therefore manifesting again Europe’s long inability to translate its economic might into political and military capital – so what’s new? Only Putin comes out entirely in control – hopefully, in the long run, a Pyrrhic victory.

The Russians will not withdraw from the two rump entities any time soon and no one will push them either. Have the Superpowers not been somewhat more equal than everyone else for some time now? That does not make the invasion any more legal than that of, say, Turkey into Cyprus and the status of the rump ‘statelets’ is indeed likely to remain more like that of Northern Cyprus than that of Bangladesh. This may not be the time for talking of ‘shifting paradigms’ (a less elegant phrase might be ‘koshering the pig’) but perhaps it is rather even more important to hold fast to the old ones oft consecrated in their breech. But I am sure there are other views out there and EJIL or EJIL:Talk! would welcome hearing them.

In this Issue

We end the year Marking the Anniversary of the UDHR with an intellectual bang. As indicated in an earlier Editorial we resisted the temptation to publish a piece on The Life & Times of the Declaration, let alone a biography of the Declaration, authorized or unauthorized. Instead, I asked Jochen von Bernstorff of the Max Planck-Institute in Heidelberg to write a Review of Reviews – a decidedly different and in some respect more interesting exercise – on the reception of the Declaration over the decades by commentators and reviewers. His article opens the continued Symposium on the UDHR Anniversary in this issue, and is entitled ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the International Human Rights Discourse.’ From time to time, EJIL publishes speeches when it considers that the credentials of the speaker and the content of the speech both add to the intellectual stature and academic quality of the Journal (see e.g. the speech of Pascal Lamy in Vol 17:5). In this issue, and still part of our UDHR Anniversary celebration, we publish a speech by Mary Ann Glendon commenting on the very important address of Pope Benedict XVI on Human Rights to the General Assembly.

We also use the occasion of the UDHR Anniversary to introduce a new rubric to this journal, EJIL: Debate!, this time with one comment and one exchange on two pieces which appeared in the Human Rights Symposium published in EJIL Vol. 19:4. Paolo Carozza replies to Christopher McCrudden (on ‘Human Dignity and Judicial Interpretation of Human Rights‘), and Robert Howse replies to Ulrich Ernst Petersmann who rejoins (on ‘Human Rights, International Economic Law and Constitutional Justice‘). If academic debates in general fall into two broad categories, this must be true for EJIL: Debate! as well. Some debates follow the Wisest of Men in Ecclesiastes 9:17 ‘The words of wise men are heard in quiet ….’  Other debates light the fires of the passions – notably the passion for truth. Fires tend to be hot: The Talmud (Avot II: 10) is apposite:

Warm yourself before the fire of the sages, but be heedful of their glowing coals for fear that you be burned, for their bite is the bite of a jackal and their sting the sting of a scorpion and their hiss the hiss of a serpent, and all their words are like coals of fire.

Our inaugural EJIL: Debate! falls into both categories. One way or the other, we the readers are the beneficiaries.

Private Armies – A Symposium

At the core of this issue we publish the very topical Symposium entitled ‘Private Military Contractors and International Law’. In this Symposium, there are five selected articles chosen from a broader range of contributions to a conference on this topic: Nigel D. White and Sorcha MacLeod turn to ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility‘, Carsten Hoppe deals with ‘State Responsibility for Private Military Companies‘, Chia Lehnardt’s piece is concerned with ‘Individual Liability of Private Military Personnel under International Criminal Law‘, Cedric Ryngaert investigates the ‘Litigating Abuses Committed by Private Military Companies‘, and Simon Chesterman finally declares: ‘We Can’t Spy … If We Can’t Buy!‘, exploring ‘The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions”. I refer the reader to the Introduction written by Francesco Francioni of the Board of Editors, who was the Symposium Editor and to whom we express our profound gratitude for conceiving, executing and editing the Symposium.

Last but not least in this issue we publish an article by Jean D’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials‘, who refreshes and modernizes, without repeating, the classic positivist objection to soft law, and produces a new account of softness in law. By identifying various agendas underlying different kinds of soft law, he reminds – and provokes – us international lawyers to reflect on our own behaviour and practice with regard to soft law as a concept of the international legal order. In the Book Reviews Section, you will find a review essay by Maksymilian Del Mar, discussing ‘Jurisprudence on the Frontline‘ through a review of Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering.

Outside this Issue

EJIL already has a homepage www.ejil.org, the autonomous website of the European Journal of International Law. Our website was a pioneer long before publishers such as our current publisher, OUP, moved into digital journal publishing, and it is distinct from all other mainline journals of which we are aware. Not only is a sizeable portion of current content made free to the reader, but all content becomes free one year after publication – the scholarly world Napster! I say all this to indicate that we are not parvenus to the notion of digital internet publishing.

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing – to use these two terms as metaphors. Twenty years ago, EJIL made huge efforts to provide ‘services’: Recent decisions of the ECJ on matters of International Law as well as decisions of the WTO of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of internet search engines and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’- but try to have a symposium on a recent decision of the ICJ or a certain ‘incident’ as soon as possible after the event! That too has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for bringing in aggressively younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to and interest in history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate …). If our new blog EJIL:Talk! is successful, it will enable us to effect a further change in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. We will become more lenient with longer articles (see e.g. Christopher McCrudden’s piece in EJIL 19:4). EJIL:Talk! may be the outlet for the shorter piece. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Please help make EJIL:Talk! a successful blog and, indirectly, EJIL an even more successful Journal.

JHHW