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European Journal of International Law
Journal Prestige (SJR): 0.694
Citation Impact (citeScore): 1
Number of Followers: 217  
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0938-5428 - ISSN (Online) 1464-3596
Published by Oxford University Press Homepage  [409 journals]
  • Editorial: Editor-in-Chief Sarah M.H. Nouwen; Best Practice – Writing a
           Peer-Review Report; In This Issue
    • Authors: .
      Pages: 355 - 359
      Abstract: Editor-in-Chief Sarah M.H. Nouwen
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz040
      Issue No: Vol. 30, No. 2 (2019)
  • International Law of Customs Unions: Conceptual Variety, Legal Ambiguity
           and Diverse Practice
    • Authors: Ovádek M; Willemyns I.
      Pages: 361 - 389
      Abstract: AbstractDespite having considerable historical presence – traceable from 19th-century Germany – customs unions (CUs) have long been an understudied phenomenon in international law. This article aims to remedy this gap by critically reviewing the concept of customs union and identifying key issues in CU designs. The article problematizes what is understood by the concept of CU and what is entailed by the foremost definition of CUs found in Article XXIV of the General Agreement on Tariffs and Trade (GATT). It further investigates how recurrent design issues are resolved in practice by different CUs considering the inherent tension between the enactment of common rules and institutions and state sovereignty. We find variety in the historical, economic and legal conceptualizations of CUs, ambiguity and lacunas in Article XXIV of the GATT and diversity of CU designs along with a discernible concern for the impact of legal arrangements on state sovereignty.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz028
      Issue No: Vol. 30, No. 2 (2019)
  • State Instigation in International Law: A General Principle Transposed
    • Authors: Jackson M.
      Pages: 391 - 414
      Abstract: AbstractIt is widely believed that international law imposes no general prohibition on instigation – no general prohibition on states inducing, inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a representative set of domestic jurisdictions for comparative analysis. Second, through a brief comparative survey, I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And, third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz021
      Issue No: Vol. 30, No. 2 (2019)
  • Pioneering International Women’s Rights' The US National Woman’s
           Party and the 1933 Montevideo Equal Rights Treaties
    • Authors: Amorosa P.
      Pages: 415 - 437
      Abstract: AbstractHistories of equal rights for women in international law normally begin with post-World War II initiatives. Such an approach leaves out two treaties signed at the 1933 Montevideo Pan-American Conference, the Equal Nationality Treaty and the Equal Rights Treaty, which remain forgotten among international lawyers. By reconstructing their inception and intellectual background, this article aims to raise awareness about debates on international law among feminist activists in the interwar years. In turn, the focus on activist work allows for the recovery of the contribution of women to the development of the discipline in that seminal period, a contribution usually obfuscated by men’s predominance in diplomatic and academic roles. By outlining the contribution of two key promoters of the Montevideo treaties – Doris Stevens and Alice Paul of the National Woman’s Party – the article takes a step towards the re-inclusion of women’s rights activists within the shared heritage of international law and its history.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz025
      Issue No: Vol. 30, No. 2 (2019)
  • ‘Hospital Shields’ and the Limits of International Law
    • Authors: Gordon N; Perugini N.
      Pages: 439 - 463
      Abstract: AbstractAssaults on hospitals have become part of a widespread warfare strategy, propelling numerous actors to claim that belligerents are not being held accountable for attacking medical units. Acknowledging that international humanitarian law (IHL) offers medical units protections, belligerents often claim that the hospitals were being used to shield military targets and therefore the bombing was legitimate. Tracing the history of hospital bombings alongside the development of legal articles dealing with the protection of medical units, we show how, from the early 20th century, international law has introduced a series of exceptions that legitimize attacks on hospitals that were framed as shields. Next, we demonstrate that the shielding argument justifies bombing hospitals because they have ostensibly assumed a threshold position in-between the two axiomatic poles informing the laws of war – combatants and civilians. We argue, however, that medical units tend to occupy a legal and spatial threshold during war and, since IHL does not have the vocabulary to acknowledge the liminal nature of medical units and identifies between liminality and criminality, it introduces several exceptions that help belligerents legitimize their attacks. By way of conclusion, we maintain that the only way to address the deliberate and widespread destruction of medical units is by reforming the law through the introduction of an absolute ban.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz029
      Issue No: Vol. 30, No. 2 (2019)
  • Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for
           ‘Shielding Hospitals’
    • Authors: Beer Y.
      Pages: 465 - 480
      Abstract: AbstractThis article is a response to Neve Gordon and Nicola Perugini’s thought-provoking article, ‘“Hospital Shields” and the Limits of International Law’, published in this issue. The authors advocate reforming the law to allow hospitals absolute protection, even in cases where they are also used by combatants for military purposes that are harmful to their adversary (‘shielding hospitals’). Defining the contour of the desired protection for hospitals should start with both the institutional and personal attributes justifying their special protection as well as with the empirical data relating to the prevalence of attacks on hospitals – who and what triggers them. Against this background, this reply presents the prevailing law that grants strong protection to hospitals, albeit a contingent one that may be removed in exceptional cases of their abuse. It advocates retaining the contingent protection, though with some adjustments, and argues that the suggested absolute protection – in fact, immunity – for shielding hospitals is neither feasible nor normatively desirable. It would damage the current balance and rationale of the entire body of international humanitarian law in general and have a counter-effect upon the treatment of the sick and wounded in particular. Contrary to its apparent humanitarian rationale, absolute immunity for shielding hospitals would damage their ability to function as medical institutions and allow an adversary who controls a hospital full discretion in selecting its priorities regarding the use of its space and resources and might turn the sick and wounded into a means of warfare.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz037
      Issue No: Vol. 30, No. 2 (2019)
  • Who Studies International Law' Explaining Cross-national Variation in
           Compulsory International Legal Education
    • Authors: Scoville R; Berlin M.
      Pages: 481 - 508
      Abstract: AbstractThe compulsory study of international law is a universal component of legal education in some states but extremely uncommon or non-existent in others. This article uses global data and statistical methods to test a number of conceivable explanations for this puzzling feature of international society. In contrast to much of the empirical literature on state behaviour in relation to international law, we find that functionalist and socio-political variables carry little explanatory power and that historical variables – specifically, legal tradition and regional geography – instead account for the overwhelming majority of the global pattern. We explore potential explanations for these findings and discuss implications for scholars, legal educators and policy-makers.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz030
      Issue No: Vol. 30, No. 2 (2019)
  • Finding ‘the Most Highly Qualified Publicists’: Lessons from the
           International Court of Justice
    • Authors: Helmersen S.
      Pages: 509 - 535
      Abstract: AbstractArticle 38(1) of the Statute of the International Court of Justice (ICJ Statute) instructs the Court to ‘apply … the teachings of the most highly qualified publicists’. This raises the question of how to decide who these ‘publicists’ are and how to rank them. This article suggests four factors that the Court’s judges apparently use when assessing the weight of ‘teachings’: the quality of the work, the expertise and official positions of the author(s) and agreement between multiple authors. Judges may invoke these factors because it can make their opinions more authoritative and saves time, and in order to conform with Article 38 of the ICJ Statute. Counting the authors and teachings that judges have highlighted as having high quality, being experts and holding prestigious official positions provides a list that is different from the lists of writers who are cited most often and by the most judges. While this gives a rough idea of who ‘the most highly qualified publicists’ may be, it also shows that a final, conclusive ranking cannot be given.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz031
      Issue No: Vol. 30, No. 2 (2019)
  • Roaming Charges: Do Not Discard
    • Pages: 537 - 540
      Abstract: We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz038
      Issue No: Vol. 30, No. 2 (2019)
  • International Law and Economic Exploitation in the Global Commons:
    • Authors: Feichtner I; Ranganathan S.
      Pages: 541 - 546
      Abstract: In search of alternative political economies – less exploitative, less ecologically destructive – scholars and activists have turned to the commons and to commoning in recent years.11 For international lawyers, the term commons brings to mind the domains designated as ‘global commons’ and, among them, the oceans and outer space. Yet current initiatives that seek to harness the economic potential of the oceans in the name of ‘blue growth’,22 projects seeking to commercialize outer space33 and, a fortiori, proposals to ‘colonize’ outer space44 and the oceans55 as a solution to conflict and environmental destruction stand in stark contrast with visions of a commons economy built on solidarity.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz026
      Issue No: Vol. 30, No. 2 (2019)
  • ‘Other Spaces’: Constructing the Legal Architecture of a Cold War
           Commons and the Scientific-Technical Imaginary of Outer Space
    • Authors: Craven M.
      Pages: 547 - 572
      Abstract: AbstractIn this article, I seek to develop the argument that the law of outer space, as it was to be developed during the 1960s and 1970s, configured outer space as a ‘commons’ in order to displace two prevailing ‘dystopic’ socio-technical imaginaries that were to be associated with the Cold War. One of these was that outer space might become a place of warfare – and, more specifically, a warfare of annihilatory proportions between the two main protagonists of the Cold War; the other, that it might be the object of ‘primitive accumulation’. Drawing upon the work of Herbert Marcuse, I argue that, whilst the nascent code of outer space visibly sought to repress both of these possibilities, it did so by bringing into play a particular ‘technological rationality’, in which each of these aversions were to reappear as sustaining configurations – as what might be called the rational irrationalities of a Cold War commons.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz024
      Issue No: Vol. 30, No. 2 (2019)
  • Ocean Floor Grab: International Law and the Making of an Extractive
    • Authors: Ranganathan S.
      Pages: 573 - 600
      Abstract: AbstractIn this article, I argue for a critical recognition of the law of the sea, as it developed from the post-war period, as fostering a ‘grab’ of the ocean floor via national jurisdiction and international administration. I discuss why we should view what might be discussed otherwise as an ‘enclosure’ or ‘incorporation’ of the ocean floor within the state system as its grab. I then trace the grounds on which the ocean was brought within national and international regimes: the ocean floor’s geography and economic value. Both were asserted as givens – that is, as purely factual, but they were, in fact, reified through law. The article thus calls attention to the law’s constitutive effects. I examine the making of this law, showing that law-making by governments was influenced by acts of representation and narrative creation by many non-state actors. It was informed by both economic and non-economic influences, including political solidarity and suspicion, and parochial as well as cosmopolitan urges. Moreover, the law did not develop gradually or consistently. In exploring its development, I bring into focus the role played by one influential group of actors – international lawyers themselves.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz027
      Issue No: Vol. 30, No. 2 (2019)
  • Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of
           Deep Seabed Exploitation
    • Authors: Feichtner I.
      Pages: 601 - 633
      Abstract: AbstractThis article seeks to clarify how the principle of common heritage is being implemented and concretized by the fiscal regime of deep seabed mining. It first explicates the exploitation rationale underlying the common heritage principle. It argues that common heritage is a jurisdictional principle that lays the basis for the international allocation and administration of exploitation rights and, thus, for the effective economic exploitation of seabed minerals. This exploitation bias is strengthened by the perceived remoteness of deep seabed mining and the real institutional disembeddedness of the International Seabed Authority (ISA). To better understand the distribution conflicts that the law of deep seabed mining addresses, the article introduces two (competing) sets of public interest objectives: participation in exploitation and revenue generation pursued by newly independent (and, today, developing) states and access to raw materials pursued by industrialized states. The article then focuses on the different ways in which the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement on the Implementation of Part XI promote, reconcile and detract from the identified public interest objectives. It reveals how the participation objective has given way to a focus on market supply and revenue generation, and how the changes of the 1994 Implementation Agreement may be read as an attempt to dissolve the conflict between these competing public interest objectives, and to depoliticize the seabed regime. Third, the article turns to the ongoing work on a mining code for the deep seabed that, inter alia, must implement the ISA’s mandates to generate revenue from deep seabed mining and to redistribute this revenue. It shows how the ISA’s adoption of an individualist stakeholder orientation and its deference to commercial expectations of profitability, in the context of growing political attention to the oceans as a source of economic growth, are further transforming the notion of common heritage and benefit sharing and concomitantly undermine the regime’s redistributive ambitions. It also clarifies how the sponsorship of deep seabed mining by small Pacific island states holds only little promise of significant public revenue generation for these states, but may work to undermine solidarity among developing states. The article ends with a call on international lawyers to recognize the designing of a mining code for the deep seabed as the making of political economy.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz022
      Issue No: Vol. 30, No. 2 (2019)
  • Common Heritage of Mankind as a Limit to Exploitation of the Global
    • Authors: Mickelson K.
      Pages: 635 - 663
      Abstract: AbstractThis contribution to the symposium on the economic exploitation of the commons focuses on the question of whether and to what extent the principle of the common heritage of mankind (CHM) imposes environmental limits on economic exploitation of the global commons. Focusing on the need to go beyond a unidimensional assessment of the principle, it considers how CHM was originally envisaged, the form it took in the deep seabed regime, in particular, how its role in that regime has developed over time and how it has been utilized as a basis for advocacy. It concludes with an assessment of CHM’s limitations and strategic advantages.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz023
      Issue No: Vol. 30, No. 2 (2019)
  • Trust in the Court: The Role of the Registry of the European Court of
           Human Rights
    • Authors: Creamer C; Godzimirska Z.
      Pages: 665 - 687
      Abstract: AbstractThe growing impact of European institutions on the daily lives of citizens has stimulated greater attention to the public’s trust in these bodies. Existing research on trust in the European Court of Human Rights (ECtHR) tends to focus on the role of judges and their rulings. In contrast, this article examines the role of the ECtHR’s Registry. We argue that the civil servants of the ECtHR serve a critical function for the court’s operation and have the potential to play an indispensable trust-building role. Drawing on interviews with court officials and survey responses from government agents, we identify and discuss the practices and features of the Registry that contribute to, or undermine, member states’ estimations of trust in the ECtHR. In light of repeated and mounting criticism by member governments, our findings have important implications for the continued relevance of, and political support for, the Court moving forward.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz035
      Issue No: Vol. 30, No. 2 (2019)
  • General Principles of Law and International Due Process: Principles and
           Norms Applicable in Transnational Disputes
    • Authors: Paparinskis M.
      Pages: 689 - 694
      Abstract: KotubyCharles T.Jr and SobotaLuke A., General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes. Oxford: Oxford University Press, 2017. Pp. 304. £68. ISBN: 9780190642709.
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz033
      Issue No: Vol. 30, No. 2 (2019)
  • The Multilateral Trading System and Human Rights: A Governance Space
           Theory on Linkages.
    • Authors: Fauchald O.
      Pages: 694 - 702
      Abstract: KanadeMihir. The Multilateral Trading System and Human Rights: A Governance Space Theory on Linkages. Oxford: Routledge, 2018. Pp. 282. £100. ISBN: 9781138280014
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz032
      Issue No: Vol. 30, No. 2 (2019)
  • Traité de droit international de la mer (CEDIN)
    • Authors: Roeben V.
      Pages: 703 - 706
      Abstract: ForteauMathias and ThouveninJean-Marc (eds), Traité de droit international de la mer (CEDIN). Paris: Pedone, 2017. Pp. 1322. €94. ISBN: 9782233008503
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz034
      Issue No: Vol. 30, No. 2 (2019)
  • An die Freude/Hymn to Joy
    • Pages: 707 - 709
      Abstract: An die FreudeFreude, schöner Götterfunken,Tochter aus Elisium,Wir betreten feuertrunkenHimmlische, dein Heiligthum.Deine Zauber binden wieder,Was die Mode streng getheilt;Alle Menschen werden Brüder,Wo dein sanfter Flügel weilt.ChorSeid umschlungen, Millionen!Diesen Kuß der ganzen Welt!Brüder – überm SternenzeltMuß ein lieber Vater wohnen.Wem der große Wurf gelungen,Eines Freundes Freund zu sein;Wer ein holdes Weib errungen,Mische seinen Jubel ein!Ja – wer auch nur eine SeeleSein nennt auf dem Erdenrund!Und wers nie gekonnt, der stehleWeinend sich aus diesem Bund!ChorWas den großen Ring bewohnet,Huldige der Sympathie!Zu den Sternen leitet sie,Wo der Unbekannte thronet.Freude trinken alle WesenAn den Brüsten der Natur,Alle Guten, alle BösenFolgen ihrer Rosenspur.Küsse gab sie uns und Reben,Einen Freund, geprüft im Tod.Wollust ward dem Wurm gegeben,Und der Cherub steht vor Gott.ChorIhr stürzt nieder, Millionen'Ahndest du den Schöpfer, Welt'Such ihn überm Sternenzelt,Über Sternen muß er wohnen.Freude heißt die starke FederIn der ewigen Natur.Freude, Freude treibt die RäderIn der großen Weltenuhr.Blumen lockt sie aus den Keimen,Sonnen aus dem Firmament,Sphären rollt sie in den Räumen,Die des Sehers Rohr nicht kennt.ChorFroh, wie seine Sonnen fliegen,Durch des Himmels prächtgen Plan,Laufet, Brüder, eure Bahn,Freudig wie ein Held zum Siegen.Aus der Wahrheit FeuerspiegelLächelt sie den Forscher an.Zu der Tugend steilem HügelLeitet sie des Dulders Bahn.Auf des Glaubens Sonnenberge Sieht man ihre Fahnen wehn,Durch den Riß gesprengter SärgeSie im Chor der Engel stehn.ChorDuldet mutig, Millionen!Duldet für die beßre Welt!Droben überm SternenzeltWird ein großer Gott belohnen.Göttern kann man nicht vergelten,Schön ists, ihnen gleich zu sein.Gram und Armut soll sich melden,Mit den Frohen sich erfreun.Groll und Rache sei vergessen,Unserm Todfeind sei verziehn,Keine Träne soll ihn pressen,Keine Reue nage ihn.ChorUnser Schuldbuch sei vernichtet!Ausgesöhnt die ganze Welt!Brüder – überm SternenzeltRichtet Gott, wie wir gerichtet.Freude sprudelt in Pokalen,In der Traube goldnem BlutTrinken Sanftmut Kannibalen,Die Verzweiflung Heldenmut – – Brüder, fliegt von euren Sitzen,Wenn der volle Römer kreist,Laßt den Schaum zum Himmel sprützen:Dieses Glas dem guten Geist.ChorDen der Sterne Wirbel loben,Den des Seraphs4 Hymne preist,Dieses Glas dem guten GeistÜberm Sternenzelt dort oben!Festen Mut in schwerem Leiden,Hülfe, wo die Unschuld weint,Ewigkeit geschwornen Eiden,Wahrheit gegen Freund und Feind,Männerstolz vor Königsthronen – Brüder, gält es Gut und Blut, – Dem Verdienste seine Kronen,Untergang der Lügenbrut!ChorSchließt den heilgen Zirkel dichter,Schwört bei diesem goldnen Wein:Dem Gelübde treu zu sein,Schwört es bei dem Sternenrichter!Hymn to JoySpark from the fire that Gods have fed –Joy – thou Elysian Child divine,Fire-drunk, our airy footsteps tread,O Holy One! thy holy shrine.Strong custom rends us from each other –Thy magic all together brings;And man in man but hails a brother,Wherever rest thy gentle wings.ChorusEmbrace ye millions – let this kiss,Brothers, embrace the earth below!Yon starry worlds that shine on this,One common Father know!He who this lot from fate can grasp –Of one true friend the friend to be –He who one faithful maid can clasp,Shall hold with us his jubilee;Yes, each who but one single heartIn all the earth can claim his own! –Let him who cannot, stand apart,And weep beyond the pale, alone!ChorusHomage to holy Sympathy,Ye dwellers in our mighty ring;Up to yon star-pavilions – sheLeads to the Unknown King!All being drinks the mother-dewOf joy from Nature’s holy bosom;And Vice and Worth alike pursueHer steps that strew the blossom.Joy in each link – to us the treasureOf Wine and Love; – beneath the sod,The worm has instincts fraught with pleasure;In Heaven the Cherub looks on God!ChorusWhy bow ye down – why down – ye millions'O World, thy Maker’s throne to see,Look upward – Search the Star-pavilions:There must His mansion be!Joy is the mainspring in the wholeOf endless Nature’s calm rotation;Joy moves the dazzling wheels that rollIn the great Timepiece of Creation;Joy breathes on buds, and flowers they are;Joy beckons – suns come forth from heaven;Joy rolls the spheres in realms afar,Ne’er to thy glass, dim Wisdom, given!ChorusJoyous as Suns careering gayAlong their royal paths on high,March, Brothers, march your daunt...
      PubDate: Mon, 22 Jul 2019 00:00:00 GMT
      DOI: 10.1093/ejil/chz039
      Issue No: Vol. 30, No. 2 (2019)
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