Letters to the Editors – A Note from EJIL and I•CON; In This Issue

Letters to the Editors – A Note from EJIL and I•CON

EJIL covers principally public international law (though given the porous boundaries between the domestic and the international its ‘tentacles’ often reach deep into municipal jurisdiction). I•CON covers the broad realm of public law, with its ‘tentacles’ reaching from domestic public law to the transnational, in perhaps the opposite direction. Despite this different subject matter focus, they share in many ways an understanding of the multiple roles of a learned journal.

One such shared understanding, which will be apparent to anyone who reads one (or both) journals, is our belief that the life of an article, as far as the journal is concerned, does not end at the moment of publication. We hope, as do the authors, that it will have an impact on the literature, as reflected in, say, citation and scholarly engagement.

We do our best, as attested in the numerous ‘Debates’ that are published in both journals as well as in our blogs, EJIL: Talk! and ICONnect, to foster discussion, deliberation and critique of the articles we publish, to make them part of a scholarly conversation.

However, not everyone who wishes to respond wants or needs to write a full article or blogpost. To cater for a wider range of debates, we are launching a new rubric in both journals: Letters to the Editors.

Here are a few non-exhaustive examples where we think our authors and readers may find a Letter to the Editors useful and interesting:

Book Reviews

We would like to see our book reviews and review essays as part of a debate between the reviewer and the author. But that debate need not end with the review – in fact, the review may be the beginning of such debate. If an author feels that her or his book was not fairly reviewed or that important points were missed, we invite her or him to go ‘on the record’ and point that out, as is the custom in ‘intellectual magazines’ such as the London Review or the New York Review etc. Letters may come from other readers as well, not only from the author.

Examples:

Dear Editors,

I was, of course, pleased to see my book, The Sex Life of Bees and International Law reviewed in your last issue. But on reading the review by Professor Knowall I had the impression that it was some other book under review…..

Dear Editors,

Claudia Miller’s review praises International Law and Linguistics as a groundbreaking work. It seems to me that the review (as much as the book) ignores the rich Spanish-language literature on linguistics and the law, especially XYZ.

Comments on Articles

It happens oftentimes, does it not, that you may be reading an article, a good article, but one point grabs your attention as contestable or debatable? Such might not justify a full ‘Reply’ or ‘Debate’ but could be of interest to readers and enhance scholarly discourse. Why not a Letter to the Editor?

Example:

Dear Editors,

In her otherwise excellent article ‘On the Disproportionality of Proportionality’ Jane Doe makes one argument which I think may be contested. She claims that the semiotics of subjectivity are objectively subjective. But is it not the case that in fact they are subjectively objective?

Editorials and General Direction of the Journal

Practically every decision taken by the Editors involves an implicit or explicit policy choice. (We do not refer here to individual decisions on specific articles, of course.) Are we choosing interesting topics for symposia? Is the balance among, say, different subject matters or between doctrine and theory satisfactory? Are there patterns or choices in the output of the journal that readers find objectionable or problematic? Or that they would simply like to draw to our attention and to the attention of our readership?

Example:

Dear Editors,

Thank you for publishing your yearly Vital Statistics. I noticed the paucity of submissions and eventual publication of articles from Francophone countries. Is this not a matter of concern for the Editors?

***

Now, of course, lots of issues can be addressed by direct communication with the editorial team, but many such issues are of a general public interest. The Letters will therefore be published on the journal blogs, which are quick and have thousands of readers, as well as in the printed journal, which will make them part of the journal’s official record.

Letters will typically relate to items published in the journal, be restrained and respectful in tone (though they may be cutting and critical in content) and limited to a maximum of 450 words (sometimes shorter letters have greater impact).

It is also customary that readers respond to letters and we would welcome such engagement. The intention is that the correspondence will appear in real time on the Blogs and then the integrated exchange will appear in final form in print in the Journal.

As is customary, the Editors reserve the right to accept, shorten (with notification and consent of the author) or reject letters.

In This Issue

The final issue of volume 31 opens with a new rubric – introduced in the Editorial – which aims to foster academic debate: Letters to the Editors. The first Letter to the Editors is by Danae Azaria and responds to Jan Klabbers’s essay ‘The Cheshire Cat That Is International Law’ (EJIL 31:1), which in turn discussed Azaria’s article on the role of the International Law Commission, published in the same issue.

This anacrusis is followed by the Afterword section, in which five authors respond to the 2020 Foreword on ‘Guiding Principles on Shared Responsibility in International Law’ (EJIL 31:1). B.S. Chimni provides a TWAIL response to the Articles on State Responsibility and the Guiding Principles on Shared Responsibility. He argues that because the Guiding Principles are based on the Articles on State Responsibility, they repeat all their problems, including their unjust effects on weak states. Lorenzo Gasbarri focuses on Principle No. 3 to argue that the Guiding Principles are overly complex and that the established principles of international responsibility provide simpler and more effective answers. Following this, Vladyslav Lanovoy seeks to trace the fine line between adding value and adding unnecessary complexity, arguing that irrespective of their valuable, progressive nature, the Guiding Principles at times meander between ‘too much’ and ‘too little’. Odette Murray highlights the role of domestic analogies in the formulation of the Guiding Principles by providing a comment on Guiding Principle No.7, questioning its underlying rationale and criticizing the unnecessary uncertainty of its scope of application. The Afterword concludes with a comment by Federica Paddeu on Guiding Principle No. 5, which focuses on the reach of defences and argues that the Guiding Principles contain a blind spot.

The Articles section opens with Frédéric Gilles Sourgens’ ‘The Precaution Presumption’. While Sourgens agrees that the precautionary principle should be understood as an evidentiary principle, he argues – contrary to the mainstream – that the principle should be construed as a presumption. In this way, he argues, it will be fully proceduralized and contribute to overcoming discrepancies in risk management. Steven R. Ratner scrutinizes the significant but nebulous duty of non-aggravation in international law by examining current understandings articulated by political and judicial bodies. Ratner also provides a set of criteria and factors to distinguish aggravating from non-aggravating acts that may give guidance to states. Shifting the focus to world trade law, Yury Rovnov takes on yet another central but intricate principle: that of the ‘appropriate level of protection’ within the SPS Agreement. Beyond his stocktaking of the panel and Appellate Body jurisprudence on the appropriate level of protection, and showing that this is arguably the most misconceived notion of WTO law, he offers some reflections on the direction of future jurisprudence in this respect. Heidi Nichols Haddad closes the Articles section with an argument about the under-appreciated municipal localization of international law. By analysing the binding ordinances in San Francisco and Los Angeles, which effectively (though not technically) implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – a treaty to which the United States is not a party – she shows the potential of cities as independent implementers of unratified international law, whilst also highlighting challenges and limits to this strategy.

In our occasional rubric ‘The Theatre of International Law’ we feature Mickey Zar’s, ‘Piracy: A Treasure Box of Otherness’. Zar connects and compares maritime piracy with digital piracy, highlighting their commonalities ranging from their social roles as ‘others’ to the fact that they can both be qualified as an assault on the alliance of capitalism and sovereign states.  

‘COVID Autumn’, our Roaming Charges image for this issue, presents the quiet and disquieting stillness of a public place during the pandemic.

In our rubric ‘The European Tradition in International Law’, we continue with a symposium dedicated to Camilo Barcia Trelles. Ignacio de la Rasilla, who put forward the idea and convened the symposium, portrays the life and legacy of the almost forgotten Camilo Barcia Trelles, highlighting in particular how he contributed to the renaissance of Francisco de Vitoria and the School of Salamanca in international law circles in the interwar period. Randall Lesaffer focuses on the lecture series Barcia Trelles presented on Francisco de Vitoria at The Hague Academy of International Law, upon invitation by James Scott Brown in 1927, and analyses the methodological and intellectual moves he made to construe Vitoria as the original founder of international law, detaching him from his medieval sources. Juan Pablo Scarfi explores Barcia Trelles’ Spanish American interpretation of the Monroe Doctrine, which he sees through the prism of Vitoria’s international legal thought, his contributions to the debates over interventions in Latin America as well as the codification of American international law. José María Beneyto closes the symposium, bringing to light the influence of Camilo Barcia Trelles on two prominent yet opposing scholars – James Scott Brown and Carl Schmitt – by introducing both of them to the importance of Vitoria and displaying the tremendous impact Barcia Trelles had on some of the seminal pieces by Carl Schmitt on international law and geopolitics, such as Schmitt’s doctrine of the Grossraum.

The European Tradition in International Law is a rubric that has been part of EJIL since its inception and is one of our trademarks. We are grateful to Ignacio and his collaborators; we would welcome suggestions from our readers as to scholars we might feature in future instalments of this recurring rubric.

We close the issue with a poem by Emily Dickinson, which may be fitting for our times. Dickinson spent large parts of her life in isolation, corresponding with friends almost exclusively by letter. This poem expresses both her grief and fortitude at a time of personal loss during the American Civil War.