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Journal Articles

Je Suis Achbita!; The Trump Jerusalem Declaration and the Rule of Unintended Consequences; 10 Good Reads; A propos Book Reviewing; EJIL Roll of Honour; In This Issue

Je Suis Achbita!*

Achbita, decided in March 2017 is not a run of the mill case. It raised
what I think are hugely difficult conceptual legal issues. It also comes at a delicate
moment in the social and political life of Europe, where the Court of Justice of the
European Union is an important actor in shaping the climate and defining the moral
identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even
close to what one may expect from the supreme judicial voice of justice of our Union in
a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name
of a neutrality policy of the company that she may not wear the hijab (a head scarf) to
work, and thus she lost her job. I think it is a fair reading of the ruling sent back to
the referring Belgian Court that other than checking that the company, without overly
burdening itself, could not find a place for Achbita in a back office which would not
bring her into contact with the public, the Court had no major problems with the
company’s policy compliance with the specific Directive bringing the case within
the jurisdiction of European Law and the overriding human rights controlling norms such
as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly
different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that
town. She, like other members of that community, follows the strict norms of Orthodox
Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general
services company which, inter alia, offers reception services to
customers in the private and public sectors. As a receptionist she comes into contact
with customers. No fault is found with her job performance. Chaya Levi falls in love and
marries Moses Cohen of her community. Under Jewish law she now must wear a scarf
covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate
tell-tale sign that she is an observant Jewess.

She is told by her supervisors that under company policy this headscarf would not be
tolerated because the visible wearing of political, philosophical or religious signs was
contrary to the company’s policy of neutrality.1

Chaya Cohen (née Levi) refused to remove the scarf and was dismissed. She lodged an
appeal before the competent Belgian courts and eventually comes by way of Preliminary
Reference to the ECJ and is considered primarily under Directive 2000/78.2 The Directive refers in Recital 1 to fundamental rights protected under the ECHR
which provides in Article 9 that everyone has the right to freedom of thought,
conscience and religion, a right which includes, in particular, freedom, either alone or
in conjunction with others, and in public or private, to manifest her religion or belief
in worship, teaching, practice and observance.

The Court points out that these same rights are reflected in Article 10(1) of the
Charter. The references to the Charter and the ECHR are important since, whereas the
Directive is concerned specifically with non-discrimination, the Charter and the ECHR
more capaciously refer to freedom of religion. Both principles come into play in this
decision.

1 The Framing of the Factual Matrix

As cited, approvingly, by the ECJ, the Belgian Higher Court ‘… noted
… that it was common ground that [Chaya Cohen] was dismissed not because of
her [Jewish] faith but because she persisted in wishing to manifest that faith,
visibly, during working hours, by wearing [a Jewish] headscarf’.3

The first major problem with the approach of the Court is rooted in this very framing
of the case.

I invite you to consider two variations of the factual setting as presented
above.

Variation 1. Chaya Cohen, in addition to her scarf, also sports a Star of David
pendent.

Variation 2. Moses Cohen also works at the company. He, too, sports a Star of David
pendent, but in addition wears a yarmulke (skull cap) and has long dangling
sidelocks, which are required under similar strict Jewish law. (You have seen these
men around in airports, etc.)

When told of the policy of the company that they may not ‘manifest’ their
faith visibly during working hours, both immediately offer to remove the Stars of
David. That indeed is an identity marker which manifests their Jewishness. Moses
offers to wear a hat and to try and hide his sidelocks behind his ears. His
supervisors are dubious: Who wears a hat indoors if he is not a Jew, they ask? That,
too, is a clear tell-tale sign, he is told, and thus contrary to company policy. His
sidelocks, it turns out, are too long and, alas, are still visible. Reach for the
scissors if you wish to keep your job.

Be that as it may, Moses and Chaya try to explain that in wearing the scarf, the
yarmulke and the sidelocks they are not ‘wishing to manifest their faith’. The Star of David can come off at the blink of an eye. But in
relation to the scarf and yarmulke they are practising their faith.
They have no option by law, the observance of which in their eyes overrides, quelle horreur, even European law.

Grant me that there is, phenomenologically-speaking, a difference between the wish to
manifest one’s religious identity and the practising and observing of such.
Or, put differently, between forbidding someone from manifesting his or her
religious identity and actually coercing them to violate religious norms which they
consider sacred.

Here are two examples to underline the difference. It is one thing to tell a
vegetarian or vegan that they may not show up at work wearing a lapel button
proclaiming their belief in animal rights but quite another to coerce them to eat
meat. Or telling a gay man or woman that they may not show up with a rainbow tie and
telling them they may not actually practise homosexual love.

It follows, in my view, that the ‘common ground’ to which the Belgian
Court alluded and which seems to underlie the judgment of the ECJ should not be
that:

[Chaya Cohen] was dismissed not because of her [Jewish] faith but because she
persisted in wishing to manifest that faith, visibly, during working hours, by
wearing [a Jewish] headscarf.

But instead quite differently:

Chaya Cohen was dismissed precisely because of her Jewish faith – a faith
which manifests itself in a Nomos which includes (to the bewilderment of some) a
duty and commitment to wear a scarf once married.

Or, put differently:

She was dismissed not because she persisted in wishing to manifest her faith but
because she persisted in wishing to practise what she, as an adult woman, or her
husband (variation 2), as an adult man, held to be their religious legal duty as
an expression of loyalty to, and love of, the Almighty and, born into an eternal
Covenant to which they choose to remain loyal.

After all, Moses wears his yarmulke even when alone at home. To whom is he
manifesting his religion then? ‘To God’ would be the only dignified
answer. One might raise the philosophical objection – replicating the debate
of aims and effects in international trade law – that Chaya was not dismissed
because of her Jewish faith but simply in ‘neutral’ application of
company policy. I think this is splitting hairs. If, say, Columbia Law School had in
place a similar policy of ‘neutrality’ it would mean that the
illustrious Lou Henkin, one of the ‘fathers’ of international protection
of human rights law, would have lost his job. I assure you he would not have removed
his yarmulke. If asked why he lost his job, he most likely would have answered
‘because of my faith’; ‘because I am an observant Jew’. And
if, hypothetically, the ECJ were to adopt a similar rule of neutrality as regards
the attire of lawyers appearing before it, the distinguished British barrister,
Shaheed Fatima QC would be excluded. I assure you she, too, would not remove her
hijab. And just as surely her exclusion would be because of her commitment to the
observance of the precepts of her Muslim faith. ‘I can’t appear
there’, she is most likely to say, ‘because I am an observant
Muslim’.

Nota bene: Does this mean, automatically, that the Court was wrong
in allowing the dismissal of Chaya as a receptionist?4 It certainly does not necessarily mean that.

Shaheed Fatima QC

Shaheed Fatima QC

But this distinction, in my opinion, produces two salient legal consequences. In
deciding the case, as part of the inevitable proportionality test, the Court would
eventually have to balance the weight to be given to the company’s ‘wish
to project an image of neutrality towards customers’, which is but an
expression of the ‘… freedom to conduct a business that is recognised in
Article 16 of the Charter [which] is, in principle, legitimate’,5 as against the weight to be given to the freedoms, guaranteed under
Directive 2000/78, the Charter and the ECHR, to Chaya.

In weighing the rights of the company as against the rights of Chaya, the first
salient legal consequence would or should be that the Chaya side of the scale would
be somewhat lighter if it concerned a simple manifestation of her faith than if it
concerned her ability to practise and observe her faith or her need to violate her
religion. Put differently, the Court (and the society for which it speaks) would
have to imbue the right of the company ‘to project an image of neutrality
towards customers’ with far more gravitas if it meant that she was forced to
choose between losing her job or violating her religion than if it simply required
her to tuck her Star of David under her shirt. I do not want to make light of the
‘right to manifest’. In Eweida the ECtHR qualifies such
as a fundamental right and explains its importance as ‘… the value to an
individual who has made religion a central tenet of his or her life to be able to
communicate that belief to others.’6 But I am arguing that compromising or limiting the right of communicating
one’s faith to others through the wearing of some sign is not quite as serious
as preventing that same person from actually practising and living that faith or
forcing them to violate it. (Recall, please, the vegan.)

Failure to make the distinction between preventing a person from
‘manifesting’ their faith and forcing them to violate it will, in my
view, very substantially, perhaps even fatally, compromise the eventual
proportionality test.

Let me, again, make it abundantly clear: the right to religious practice and
observance is not sacred in our constitutional orders and there are instances
aplenty where we rightly ride roughshod over religious liberties in the name of
higher societal values – such as our prohibition, to give but one example, of
religiously-driven female circumcision. Nonetheless, when we do allow the denial of
so fundamental a right as religious liberty we would expect to find some weighty
countervailing values to justify such.

Knowing that the Court failed to make that distinction and, erroneously in my view,
considered that Chaya ‘…was dismissed not because of her [Jewish] faith
but because she persisted in wishing to manifest that faith’, we should not
expect too much ballast to be given by said Court to the countervailing value. But
even framing the issue as simply denying her right to ‘manifest’ her
religion (which in any event is explicitly protected) would require some serious
countervailing argumentation.

The second legal consequence that flows from failure to note the distinction is that
the Court will not be aware of the structural discriminatory effect the company
policy produces among different religions. Indeed, this possibility is only
mentioned in passing as a hypothetical possibility and in a highly problematic way
in the 23 brief paragraphs which constitute the operative reasoning of the
judgment.7

Whence the discrimination?

We tend often to speak of the ‘Judeo-Christian tradition’ as if the two
religions are sisters. In fact the sister religions from the perspective under
discussion are Islam and Judaism for in both the presence of God for believers is
felt primarily by the thick matrix of divinely ordained legal norms – Nomos
– which accompany the faithful from the moment of waking to resting
one’s head to sleep, through dress code, eating code, working code, making
love code, etc. Sharia and Halakha are remarkably similar in this respect, in
contradistinction with the Pauline revolution undergirding Christianity.

Take Maria, a co-worker who, like Chaya, may wish to manifest her religious fealty by
coming to work wearing a pendent with a cross similar to Chaya’s Star of
David. And Samira may wish to affix a half-crescent brooch to her shirt. In relation
to such, the company policy will impact them equally. To oblige them to remove these
visible signs of their faith may compromise some liberty of expression or conscience
but not their religious – strictu sensu – observance.
But with just a very few exceptions, affecting a very few Christians, the company
policy will have a huge disparate impact on Jewish and Muslim women (and in other
respects men too) – the very stuff of indirect discrimination –
compared, say, to Christianity. It is hard to avoid this conclusion as a simple
empirical observation. It might even rise to the status of judicial knowledge and
not be left to fact-finding.

If this is so, the Directive itself, as well as the general law of discrimination in
the field of human rights, mandates that there would have to be weighty reasons
(which usually are canvassed in the third stage of proportionality analysis)
justifying the acceptance of such discrimination. Failure to address this would
constitute another grave flaw in the decision of any judicial instance.

2 A Brief Theological and Sociological Excursus

Before we move on to see how the CJEU deals (if it does at all) with the above two
legal consequences I would like to make two sociological and theological
observations.

  • 1. It is not my intention at all to suggest that Christian believers, unlike
    their Jewish or Muslim brothers or sisters, leave their faith outside the
    precincts of the workplace. But the way they live their faith in the
    workplace is through their ethical conduct, their love of their fellow
    worker and the like, which constitute testimony to the living Christ. For
    the most part Christianity has abjured the myriad of ritualistic practices
    which characterize Islamic and Jewish Nomos. It is mostly a religion of the
    heart. Your Christianity in such circumstances is not manifested by what you
    wear, what you eat and the like, but how you behave. It is perhaps necessary
    to dispel the common misunderstanding that Islam and Judaism are all about
    ritualistic practices: ‘don’t eat pork, but it’s OK to
    cheat’; ‘avoid alcohol but throw a bomb’ – being
    classical anti-Semitic and Islamophobic tropes. The moral law and the
    ethical imperative are a central part of Nomos and indeed render the ritual
    useless if the ethical is absent, as a brief excursion into Leviticus (where
    Love thy Neighbour originates) or prophets such as Isaiah and Amos well
    establish. This would also be the appropriate place to mention that in
    related cases where, for example, the vindication of one person’s
    right, say to an abortion, would implicate the violation by another, say a
    Catholic, of their religion by violating in this example not a ritualistic
    rule but a firmly held divinely inspired moral rule, any court would have to
    engage in the same wrenching stage three proportionality analysis involving
    a clash of two conflicting protected rights. If there is a way of securing
    the abortion, without forcing someone to violate their religious
    convictions, it would probably be indicated both under the stage two
    necessity test as well as stage three balance of values. It is the approach
    of ‘accommodation’ which is increasingly being used to resolve
    these divisive cases. (See infra in my discussion of
    Proportionality.)

  • 2. I can understand why the Court – in total good faith (excuse the
    pun) – was oblivious to the manifest/practise distinction and does not
    even address it, even if to reject it. This is not surprising since in
    producing this blindness two massive civilizational forces – which
    often find themselves in opposition – combine to condition
    contemporary sensibilities on these issues. The two forces are the Christian
    Revolution of Jesus/Paul and the Laïque tradition of
    the French Revolution.

One (not the only one) central feature of the Christian Revolution was, as mentioned
above, the teaching (in the Sermon on the Mount, for example) that the Law was
accomplished and that the nature of the Covenant between God and (Wo)man had
eternally changed. It was no longer important, to give but one emblematic example,
what man put into his mouth but the words that came out of a man’s mouth and
with that the intricate matrix of rituals which was and remains one (not the only
one) central feature of Nomos was consigned to the dustbin of Christian religious
understanding and practice as a relic of an earlier and more primitive stage in
God’s world.

A normative judgment was associated with this feature of the Christian
Revolution: Ritualistic Nomos was the peel. The core of the religious fruit was
the interior of the human subject. You do not circumcise your penis, as do Jews
and Muslims, but your heart. This normative judgment was (and is) often
accompanied by contempt for the primitiveness of those aspects of Islam and
Judaism and, even as contempt dissipated – or at least we have learnt to
conceal it – a total incomprehension of the profound spiritual
significance of Nomos set in. The underlying blindness to the distinction
emanates precisely from that intuitive, almost natural, sensibility conditioned
by two millennia of Christianity that ‘surely it cannot matter all that
much to Chaya if she is asked to remove her scarf. Surely that scarf is but the
peel, not the real flesh of the fruit.’ And, yes, ‘surely it is but
a manifestation of her faith, not the faith
itself
’.8

Add to that, now, the pervasive impact of the French Revolution of which,
blessedly, we are all children and beneficiaries in so many ways. Gloriously, to
give but one example close to this case, the French Revolution as part of the
dismantling of the Confessional State emancipated the Jews, making them
libres et égaux’ in the famous phrase of
that very Revolution. But it was accompanied by Be a Man Abroad and a
Jew in your Tent
, in total accord with the laïque vision which regards religion as a private
matter. The appropriate locus of religion is the home and Church, not the public
space which must remain ‘neutral’. Historically, Jews embraced this
in part as a worthy price to pay for their emancipation (and many, even most,
embraced it as a catalyst for emancipation from the yoke of Nomos …).

With this sensibility, to tell Chaya that she is welcome to wear her scarf to her
heart’s content in her private space but not on work premises, would seem
the most natural and innocent requirement. Indeed, her insistence on keeping it
could be seen – and the tenor of the judgment betrays such a view –
as irrational and unjustified obstinacy.

Combine these two forces which are the pillars of Western civilization, add a
largely secular society that has lost its knowledge, sensibility and even
patience with religion, and the total obliviousness of the Court to this central
distinction should not surprise us.

3 Proportionality

By contrast, we should be surprised by the puzzling way, to choose a kind expression,
in which the Court handles proportionality in this case, proportionality being at
the heart of any case of this nature.

Even in a minimalist version of proportionality we would typically expect to find
three (often, but not necessarily) sequential steps:

  • 1. Does the norm or rule which compromises a certain liberty (in this case
    religious liberty or liberty of conscience) pursue a legitimate purpose?

  • 2. Is it ‘necessary’ in the sense of ‘least restrictive
    measure’? Can that legitimate purpose be achieved, at reasonable
    burden and cost, by a different measure which would be less restrictive to
    the protected liberty?

  • 3. The third step is thought to be the most crucial from a normative and
    social perspective. For even if the measure pursues a legitimate purpose and
    is ‘necessary’ (i.e. no less restrictive measure is available)
    the Court, any court, would still have to articulate why the values embedded
    and reflected in the legitimate purpose of the measure necessary to achieve
    such legitimate purpose outweigh the values embedded and reflected in the
    protected liberty which is affected and compromised by that measure. It is
    the ensuing balance that defines the hierarchy of values by which our
    societies wish to define themselves and, indeed, are often a marker of
    normative differences among such.

In relation to the first step, the Court in Achbita holds that the
purpose of ‘projecting an image of neutrality’ is a legitimate
purpose.

As regards the second step, it remits back to the national court the second element
of proportionality instructing it to examine, on the facts of the case, whether
‘… the prohibition on the visible wearing of any sign or clothing
capable of being associated with a religious faith or a political or philosophical
belief covers only [the company] workers who interact with
customers.
[My emphasis]. If, however, that is the case’, the
Court holds, ‘the prohibition must be considered strictly necessary for the
purpose of achieving the aim pursued’.9 And ‘… it is for the referring court to ascertain whether,
taking into account the inherent constraints to which the undertaking is subject,
and without [the company] being required to take on an additional burden, it would
have been possible for [it], faced with such a refusal [by a worker to give up
wearing a Jewish headscarf] to offer her a post not involving any visual contact
with … customers’, instead of dismissing her.

I would like to focus now on the third element since it relates most directly to the
framing issues explored above and is at the heart of any human rights case, most
essentially when the case involves a clash of protected rights among individuals
which then have to be balanced.

We would expect the Court when reaching this stage of the analysis to (i) explore and
weigh the value of the company policy of neutrality as against at least the presumed
liberty of manifesting one’s religious beliefs if not practising them. And (ii) in addition, if the company policy
actually creates a discrimination among religions to further weigh whether the
importance of the policy is such as to justify such discrimination.

There are countless examples of this nature. Instructive is the treatment by the
ECtHR of the Burka case.10 The burka, unlike Chaya’s veil or Samira’s hijab, covers the
entire face of the Muslim woman. Several countries have banned such attire in public
places, clearly compromising a religious liberty. The ECtHR when faced with such
bans was at pains to analyse the set of values behind the ban, such as open society,
the nature of human relations which we cherish, dignity of women and weighing them
against the individual religious liberty. On balance and with several qualifications
it concluded that these values may legitimately justify compromising the religious
liberty to wear a burka.

Here is an example of the ECtHR dealing with a set of facts even closer to Achbita. In the Eweida decision it dealt with
a company (British Airways) prohibition on its cabin attendants, employees clearly
interacting with the public, from wearing any item manifesting their religion:

Moreover, in weighing the proportionality of the measures taken by a private
company in respect of its employee, the national authorities, in particular the
courts, operate within a margin of appreciation. Nonetheless, the Court has
reached the conclusion in the present case that a fair balance was not struck.
On one side of the scales was Ms. Eweida’s desire to manifest her
religious belief. As previously noted, this is a fundamental right: because a
healthy democratic society needs to tolerate and sustain pluralism and
diversity; but also because of the value to an individual who has made religion
a central tenet of his or her life to be able to communicate that belief to
others. On the other side of the scales was the employer’s wish to project
a certain corporate image. The Court considers that, while this aim was
undoubtedly legitimate, the domestic courts accorded it too much weight. Ms
Eweida’s cross was discreet and cannot have detracted from her
professional appearance. There was no evidence that the wearing of other,
previously authorised, items of religious clothing, such as turbans and hijabs,
by other employees, had any negative impact on British Airways’ brand or
image. Moreover, the fact that the company was able to amend the uniform code to
allow for the visible wearing of religious symbolic jewellery demonstrates that
the earlier prohibition was not of crucial importance. 11

One notes in this passage, inter alia, the separation of the issue
of legitimacy of the purpose (step one) from the balancing of such with the
competing right of the individual (step three).

Now let me cite in extensu the way the ECJ deals with this essential
third step in its proportionality analysis. How do we stack up the protected right
of the company to project a policy of neutrality (Article 16 of the Charter) as
against the protected right of employees to manifest (or practise) their religion
(Article 10 of the Charter)?

No, the empty space is not a computer or printer error. There simply is practically
nothing. Third stage proportionality was left out. The Court subsumes the third test
into the first test. It holds, quite categorically, that in principle the policy of
projecting an image of neutrality towards customers is legitimate, ‘…
notably where the employer involves in its pursuit of that aim only those workers
who are required to come into contact with the employer’s
customers’.12 Having held that, it is understandable why its only concern is whether the
company, without undue burden, could hide the likes of Chaya in the back office and
does not address the central conflict of values issue.

The Court seeks support for its statement on the legitimacy of the company’s
policy from that very ECtHR Eweida case. And, of course, given the
right to conduct a business mentioned by the ECJ, there could of course be
circumstances that justify certain conduct which compromises competing religious
freedom rights.

It is of course correct that Eweida does stand for the proposition
that in principle, as the ECJ says, a company may restrict the manifestation by
employees of their religious identity. They even give the central rationale for
such: to maintain an image of professionalism in providing a service. Presumably not
to offend or distract any potential recipient of such services.

But the comparison between Eweida and Achbita is
nothing less than embarrassing. First, in Eweida there is an
acknowledgment of the competing rights. There is a brief but pithy articulation of
their respective underlying values. And there is, above all, a weighing and
balancing which is different from the second-stage necessity stage of
proportionality. This is the bread-and-butter of human rights proportionality
analysis. This is how you ‘do’ judicial protection of human rights in
cases such as this.

Second, should not the fact that in Eweida, in balancing the values
in question, the ECtHR reached the conclusion that the company (British Airways) was
in violation and, more specifically, that

[t]here was no evidence that the wearing of other, previously authorised, items
of religious clothing, such as turbans and hijabs, by other employees, had any
negative impact on British Airways’ brand or image …

give pause?

It is the near total silence which is so puzzling. Compare the statement in Eweida with the only statement in Achbita which contains some allusion to these sensibilities:

An employer’s wish to project an image of neutrality towards customers
relates to the freedom to conduct a business that is recognised in Article 16 of
the Charter and is, in principle, legitimate, notably where the employer
involves in its pursuit of that aim only those workers who are required to come
into contact with the employer’s customers.

The allusion? The slight nod in the words ‘in principle’, but that is it.
The failure manifest in this silence is both professional and moral. It is really
hard to explain the failure to confront the issue of right v. right and deal with it
adequately. Is it really enough with no more, doctrinally speaking, that a measure
pursues a legitimate interest and is the least restrictive measure, to uphold it
even if it conflicts with another fundamental human right? And what message is sent
by acknowledging the commercial interest but not articulating, robustly or
otherwise, the values of pluralism and tolerance which underlie the freedom of
religion rights compromised by the vindication of the rights to conduct a
business?

In Bougnaoui, decided alongside Achbita, the Court
commendably stated that ‘the willingness of an employer to take account of the
wishes of a customer no longer to have the services of that employer provided by a
worker wearing an Islamic headscarf cannot be considered a genuine and determining
occupational requirement within the meaning of [Directive 2000/78]’.13 This, willy nilly, would be part of a stage three analysis. But, alas, there
is no trace of this sentiment in Achbita which, because of its more
general factual matrix, would seem to be the more important case. Could that
principle, should that principle, be limited to some restrictive reading of
‘occupational requirement’? Should that not have been part of the
dispositive of the case instructing all national courts when applying the Directive
to ensure that a professed ‘neutrality’ is not driven by such customer
wishes? But one might enquire further: Is this principle sufficient? What if there
is no actual customer-expressed wish, but the employer anticipates such and acts
accordingly. Does this kosher the pig? And even further, having made that statement
in Bougnaoui and knowing how our world operates, has the Court
inadvertently not provided a circumvention roadmap. Henceforth no employer will ever
admit to such motive and simply hide behind a generic ‘neutrality
policy’ which the Court seems to legitimate in Achbita. Would
it not have been better to create a legal presumption that any policy which requires
a worker to violate their religious precepts or even ‘merely’ prevents
them from manifesting such, would be presumptively in violation of the Directive and
the Charter unless the company could give compelling reasons (of which customer
preference not to be served by a person wearing a headscarf would not count as
compelling) for such requirements?

We are all aware that despite the professed centrality of the principle of
proportionality, there must be hundreds of cases in which the Court never goes
beyond stage two. So why all the fuss in this case? There are indeed many cases
where it is not necessary for the Court to go beyond stage two. Many such cases do
not only fall within the area of the functioning of the Single Market, which is the par excellence turf of the Court, but are also cases where the
decision of the Court is de facto dispositive. Thus in most of
those instances the Court is actually able to dispose of the case by addressing only
the second LRM stage of proportionality. Additionally, many of those cases are ones
where the Court is examining a Member State measure asserting Member State values
permitted in, say, one of the exceptions to free movement – i.e., dealing with
a value which derives from the national jurisdiction and there indeed, beyond
ascertaining that the purpose of the state measure comes within the list of
recognized purposes or the rule of reason, its main task is to ensure stage two
proportionality (labelling would do the job) and not question the Member State
values.

This is not the case here. Under the Directive the issues in this case fall within
the province of Union law. The protection afforded the individual (both the company
and Chaya) are granted by Union law. And it is thus for the European Court at least
to define the parameters and criteria which should control the weighing of one right
against another.

The second reason is that here we are dealing with fundamental human rights. As we
saw in the examples from the ECtHR, stage three analysis is at the core of human
rights analysis especially, unavoidably, as a matter of legal logic, when one is
dealing, as in this case, with competing rights of two individuals. How else would
one adjudicate between these two competing rights other than through stage three
analysis?

Could it be said, then, that although the Court itself does not engage in stage three
proportionality analysis, indispensable to a human rights case pitting one protected
right against another protected right, it remits such to the national court?

Let us examine carefully the 2nd indent in paragraph 44 of the judgment which may
indicate such.

[S]uch an internal rule of a private undertaking may constitute indirect
discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it
is established that the apparently neutral obligation it imposes results, in
fact, in persons adhering to a particular religion or belief being put at a
particular disadvantage, unless it is objectively justified by a legitimate aim,
such as the pursuit by the employer, in its relations with its customers, of a
policy of political, philosophical and religious neutrality, and the means of
achieving that aim are appropriate and necessary, which it is for the referring
court to ascertain.

The Court mentions the possibility that a measure that in fact produces a
disadvantage to a particular religion could constitute indirect discrimination and
thus violate the Directive but hastens to add that this would not be so if it were
legitimately justified by a legitimate aim. But as noted, earlier in the judgment it
had already held, in paragraph 38 that ‘[a]n employer’s wish to project
an image of neutrality towards customers relates to the freedom to conduct a
business that is recognised in Article 16 of the Charter and is, in principle,
legitimate, notably where the employer involves in its pursuit of that aim only
those workers who are required to come into contact with the employer’s
customers’. Having found that, I think the most natural way to read paragraph
44 is that what is left for the national referring court to ascertain is only
whether the means to achieve that are proportionate in the manner indicated by the
Court, namely that no job could be found, without unduly burdening the company, for
Chaya in a position which would not bring her into contact with the public. It does
not seem to be instructing the national court that it should also engage in stage
three proportionality.

But let us give a ‘generous’ reading to paragraph 44, namely that the
words ‘in principle’ mean that it would still have to be checked in each
case, and that what is for the referring court to ascertain was not simply LRM but
actually stage three balancing. Even if we were to give this generous reading to
paragraph 44 the Court would still be in dereliction of its duty. Since the
protected rights in this case are Union rights under the Directive and the Charter,
one cannot outsource their interpretation and articulation, lock, stock and barrel,
to national courts. It is for the ECJ to set the parameters of protection under
Union law. The Member State courts should apply these to the specifics of the case
before them.

Under this questionable hypothesis (that the ECJ is actually inviting the national
court to engage in stage three analysis) should not, at a minimum, the ECJ in
remitting the case back to the national court have instructed it specifically on the
parameters of the balancing to be done? Taking a leaf out of the Eweida case to which it itself referred, should it not have
explained the values enshrined in the protected rights? Guided the national court
that, given the importance of the compromised rights, the company would have to
‘make the case’ empirically and normatively that the exercise of its
right, in the circumstances of its type of business, the situation of the social
environment and so forth overrode the deleterious effect such a policy would have on
a right protected by the Directive, the Charter and the ECHR? Alongside its
reference to the right of the company to conduct its business could they have not,
at a minimum, made some reference to, for example, the need of

a healthy democratic society … to tolerate and sustain pluralism and
diversity[?]

and to instruct the national judge that there is more to the case than simply
exploring whether Chaya could be hidden in the back? That it should explore whether
the concern of the company to maintain ‘neutrality’ in contact with
clients is not just driven by a concern for professionalism (such as a legitimate
insistence on dressing neatly) but a way of accommodating the prejudices of clients,
prejudices which are inimical to a healthy democracy that tolerates pluralism and
diversity, and to take a stand on such? That there is empirical evidence that the
wearing of hijabs and turbans is accepted and that this should be encouraged
throughout by prohibiting, except in compelling cases (operating rooms?),
restrictions of such? It does not surprise me that several commentators in the
blogosphere excoriated the Court of seeming to care more about the economic rights
of the company than the human rights of the individual.

Judges in private conversations will tell you: ‘We simply could not do that; it
would upend practices which are rife throughout many Member States, even in public
administrations’, And yet, when it comes to some famous economic rights the
ECJ has over the years been bold enough to upend many a Member State rooted
practice. Why the timidity here? But even so, it need not have upended these
practices directly but could have established robust criteria for evaluating them,
since, indeed, different contexts might call for different determinations, and allow
the national courts to make the specific determinations.

This is decidedly not a call for the Court to embroil itself in political debates.
But serenely, judiciously, to do its legal duty and, at a minimum, to lay down,
first, that the national court must in addition to LRM also examine the balance
between the competing rights (granted under Union law) and the considerations and
factors which a national court must take into account in doing so.
That is the role of the Court, and never more important than in this case. The ECJ
must also understand that a ‘not getting involved’ approach is in fact
getting involved by omission. In this kind of case there is no such thing as
neutrality. Not doing is a form of doing.

It is hard not to reach the conclusion that the proportionality analysis in this case
leaves a lot to be desired and that if you take this case and others – notably
the Taricco saga – the professional credibility of the Court
as an adjudicator of human rights has taken a blow. Still, errare humanum
est
– and a poor decision may be followed by an excellent
one.

I have not in this comment so far made allusion to the two Opinions of Advocate
General Sharpston in Bougnaoui and Advocate General Kokott in Achbita. As is the custom to date, the opinions are much richer
and fuller than the judgments of the Court. And there is much to learn from them.
Advocate General Sharpston, among other virtues of her Opinion, demonstrates a far
greater understanding of, and empathy with, the position of the religious persona.
Her impact is noted for example in the statement in Bougnaoui regarding toadying to customer prejudices. Achbita would have been
a different and better decision had this sensibility been adopted by the ECJ. I find
myself in disagreement with some of the reasoning and conclusions of Advocate
General Kokott in her Opinion, which was largely followed by the Court. One point in
particular is worth mentioning. AG Kokott draws a distinction between, say, race and
gender discrimination, characteristics over which the victims have no choice, and
religion which is a matter of choice. It is, indeed, as many of Chaya’s
ancestors learnt over the centuries when offered the choice of a different Saviour
and often burnt on the stake for refusing such. Chaya can choose to abandon the 5000
year-old Covenant. She can choose, too, to violate the precepts of that Covenant.
She has chosen not to. But what of it? To remove the scarf is not exactly like
choosing whether to wear black or brown shoes to work. And her sense of exclusion,
loss of dignity and humiliation if forced to take a job because of her religion that
will make her invisible to clients would, I am sure, be no less acute than, say, a
female or black employee who was subjected to such on account of gender or colour of
skin. And our outrage, in the circumstances of this case, should be the same, choice
notwithstanding. Be that as it may, the Court could have learnt a thing or two from
AG Kokott on how one employs proportionality in human right cases; particularly
valuable is her analysis how differing national contexts may call for different
considerations in balancing the competing values.

The problems of this judgment are not confined to what I am arguing are serious
legal shortcomings. It is just but one more example of a case of enormous importance
and consequence where the reasoning is reduced effectively to 23 laconic and largely
apodictic paragraphs. Koen Lenaerts in his remarkable essay ‘The Court’s
Outer and Inner Selves’ (to be found in Judging Europe’s
Judges
, edited by Adams et al.) offers one possible
explanation for this:

[T]he ECJ operates under the principle of collegiality. In light of the latter
principle, reaching an outcome based on consensus is of paramount importance for
the daily inner-workings of the ECJ. Accordingly, for the sake of consensus, in
hard cases the discourse of the ECJ cannot be as profuse as it would be if
dissenting opinions were allowed. As consensus-building requires to bring on
board as many opinions as possible, the argumentative discourse of the ECJ is
limited to the very essential. In order to preserve consensus, the ECJ does not
take ‘long jumps’ when expounding the rationale underpinning the
solution given to novel questions of constitutional importance.

If I may jump on one of my hobby horses, this is yet another case which underscores
the argument for limiting the tenure of CJEU judges to one fixed term (following
Best Practice in Europe), thus opening the door, sparingly perhaps, for dissenting
opinions and allowing the Court in critical cases, even where there is no consensus,
to articulate its decisions more fully and not be reduced to the lowest common
denominator of consensual collegiality. And given that ECJ decisions on occasion,
like similar decisions of Member State highest courts, have a meaning and
significance and impact beyond the restricted ambiance of European law
practitioners, and beyond the national court that requested the ruling, it is
sometimes essential to go beyond the ‘very essential’. Sometimes, how a
court explains, frames and articulates is no less important than the actual decision
itself. It is important for the polity and it is important for the legitimacy of the
Court itself. Mauro Cappelletti used to teach that the single most important element
in legitimating judicial decisions is the quality of the reasoning. A landmark case
such as Achbita reverberates. One does not expect the Court to
decide issues not before it. But one expects it to decide issues before it with the
quality of reasoning that a landmark decision such as Achbita merits as is the practice of most European constitutional courts in similar
circumstances.

4 Neutrality

The Court, as we have seen, states that ‘neutrality’ is a legitimate
purpose and roots this in the freedom to conduct business as articulated in Article
16 of the Charter. The judgment is premised on the assumption that what the company
achieves is in fact a neutral workplace. I would not go as far as to argue that this
is wrong; but I would argue that in the constitutional traditions of the Member
States there are at least two competing notions of neutrality and I would have
thought that in a well-reasoned judgment, this would be acknowledged and some
explanation would be forthcoming as to why Europe should follow one rather than the
other. For heuristic reasons let us first focus on religious symbols alone.

According to the classic French tradition, which the Court seems to be following, the
public space is neutral when there is no state-sponsored direct or indirect
endorsement of any religion and concomitantly when in the workplace no religious
symbols can be displayed.

Now let us engage in the following mental exercise. Imagine three universities. In
one, and I am familiar with such institutions, everyone, students and teachers, has
to wear a yarmulke and a scarf. In another, no one is allowed to display any symbol
manifesting their religious allegiance. In the third, everyone is free to follow
their conscience. Some wear crosses, hijabs and turbans, others do not, but may
sport buttons or shirts displaying vegan or Marxist or other signs manifesting their
secular commitments, or they may wear no signs at all. If Major Tom were to find
these institutions on Mars and send a report back to Ground Control, would he not
report that the first two universities were not neutral, one had odiously enforced
religiosity, the other (odiously?) enforced laïcité,
and that only the third was neutral? At least food for thought.

This is the logic whereby, in the name of this version of neutrality, the Netherlands
and the UK fund both public religious schools of different denominations as well as
secular schools so as to ensure that the state is neutral.

Please refrain for a moment from taking sides and entrenching yourself in one
position or another. Though I believe that the third university is more neutral than
the other two, I will acknowledge that the laïque position is
not without its logic. But I want to complicate the matter even further. The company
does not only exclude religious identity markers but treats all political and
philosophical markers as well. Does this make the place more neutral? In some
respects yes. Because had they allowed the manifestation of markers of other types
of convictions (the term used in the French version of the
Directive), religious people would be more justified in feeling discriminated: Why
can somebody sport a Che Guevara button and I cannot display a cross?

But let’s probe deeper. Neutrality has no essential meaning without reference
to the ‘criteria’ or metrics by reference to which we decide what is
neutral and what is not.

For example, the company does not employ an aesthetic metric to what it conceives as
a neutral workplace. Betty can come to the office in a screaming red dress and Jane
can come in a quiet, reserved grey. The company does not insist that its employees
wear uniforms, so the workplace may be a cacophony of colours and styles (which,
incidentally are also an expression of certain philosophical convictions). Does this
not, at a minimum, further illustrate the conceptual conundrum of defining
‘neutrality’? It is not simply the question as to which is the more
‘neutral’ environment: the workspace where everyone is to wear a uniform
– i.e. no signs of expression of individual aesthetic convictions – or
the cacophony of colour and style, whereby the company is agnostic (neutral) as to
the expression of aesthetic convictions by its employees. But these examples are
here to highlight that the very determination of what is to define the metrics of
neutrality are in the hands of the company, which makes choices. Is it free to adopt
any metric?

Now would be the time to return to the legal framework. Maybe we should simply
abandon the attempt to frame the issue as one of neutrality which carries with it a
high normative appeal (neutral is good!) but which has this Janus-like quality.
This, I insist, is not a trivial legal issue. By characterizing the policy of the
company as pursuing neutrality, the Court imbues such policy with a gravitas which,
perhaps, it does not deserve and makes it easier for it to reach the conclusion it
does – that in principle the policy of neutrality (as interpreted by the
company and acquiesced in by the Court) tout court (provided it is
the least restrictive way of achieving it) overrides Chaya’s liberty to
manifest (thin version) or to practise (thick version) her religion, as well as
overriding the inter-religious disparate impact and hence discrimination it
produces.

Why not simply say that the company has the liberty to conduct its business (in
accordance with Article 16 of the Charter), a liberty which, quite normally, has
limits imposed by the general law (such as labour law) and is limited even more when
it clashes with equal or more worthy liberties of individuals. Remove the baggage or
normative noise of neutrality and the intuition of many would be that an individual
liberty of religion and conscience should override the business interests of the
company – though many others would take perhaps the opposite view. But all
would agree that the company would have to show some compelling reasons why its
policy should prevail. Unencumbered by the positive normative weight of the
ambiguous word ‘neutrality’ the stakes become clearer and the value
choice the Court so cavalierly (in my view) took, becomes more transparent.

Surely grant me that put like this the justification for compromising as the company
does the religious liberty (manifestation or practice, take your pick) deserves a
better and weightier justification than the simple word ‘neutrality’
which, I hope I have persuaded at least some, is highly problematic in this
context.

Let us probe even deeper (we will soon reach the other side of the earth). The Court
insists, again and again, that the trump card of the company is its right to provide
its customers with a ‘neutral’ environment. Why should so much weight be
given to customer preference? And in some ways does this not contradict at least the
spirit of the statement in Bougnaoui? The telos of
our laws against discrimination, as we saw in the infinitely better reasoned
decision of the ECtHR, is to combat prejudice and bigotry which feed our
discriminatory instincts and practices. Could we not, should we not, read the
Directive, and the various higher norms which the Court is at pains to show that the
Directive is but an expression thereof, as allowing a company to define as it wishes
its notion of neutrality, provided it does not have an adverse effect on the
categories protected by the express language of the Directive – unless a truly
weighty reason is given? After all, the motives of the consumers which inform the
company’s definition of ‘neutrality’ might be the very base
prejudice and bigotry which the Directive was intended to combat? Some of our
customers don’t want to be served by a Jewess; some don’t want to be
served by a Muslim. Let’s call it neutrality and either fire those employees
or hide them in the back office. Not a particularly appealing way for our society,
in whose name the Directive was enacted, to combat the prejudice which feeds –
and in this case even results – in discrimination as well as exclusion.

5 Direct or Indirect Discrimination

Finally, I would like to call into question the characterization of the company
measure as potentially creating indirect discrimination but not direct
discrimination. This in fact was the formal and only question asked of the Court in
the Preliminary Reference and to which it gave a clear answer: one is dealing with
potential indirect discrimination in this case. It does make a difference since the
justificatory burden will differ as between direct and indirect discrimination.

Here is a classic example of indirect discrimination. Consider the old English
requirement that police men and women be six feet tall. It produces a disparate
impact on women’s ability to serve in the police force. Unless justification
can be offered it would be considered indirect discrimination. By contrast, had you
targeted women directly by, say, having a quota on women police, this would be
direct discrimination.

What is important is that the metric for the measure that produces the disparate
impact has nothing to do with the protected class which is affected by it. The
metric is in fact metres and centimetres, or feet and inches. The purpose of the
measure is to ensure a more effective police force based on the (misguided) notion
that big persons would be more effective Bobbies (in fact it is no longer
followed).

In our case the purpose is to ensure ‘neutrality’ for the presumed
purpose of offering a more ‘professional’ contact between company
employees or some such objective, but the metrics used are precisely the protected
classes – religion; ‘convictions’. If you use as your metric the
protected class itself, this seems to me to take it squarely out of
‘indirect’ discrimination and into direct discrimination. By contrast,
indirect would be the discrimination as between different religions. All religions
were targeted; it affects some more than others – that is classical indirect
discrimination.

In Chez/Nikolova the ECJ was not willing to accept the explanation
given for the supposedly neutral practice (situating electricity meters high in
certain districts where tampering was suspected) but instructed the national court
to examine all the circumstances of the case to see whether the measure was
introduced for reasons related to race. Here is the relevant language from that
Decision: 14

Directive 2000/43 must be interpreted as meaning that a measure such as the
practice at issue constitutes direct discrimination within the meaning of that
provision if that measure proves to have been introduced and/or
maintained for reasons relating to the ethnic origin
common to most
of the inhabitants of the district concerned, a matter which is for the
referring court to determine by taking account of all the relevant circumstances
of the case …

Substitute ‘religion’ for ‘ethnic origin’ and the logic seems
to apply with equal force. In the case of Achbita one would not
even need to investigate too much since the reference to ‘religion’ and
‘conviction’ (the protected categories) is explicit in the formulation
of the Company’s policy.

Does it make a difference that ‘all’ religions and beliefs are targeted?
I am not sure. The ECtHR referred to ‘an individual who has made religion [or
some conviction] a central tenet of his or her life’. There are many who might
not fall into this category and hence would not be affected in the same way by the
policy. In my view, then, the very targeting of two protected categories in the
definition of neutrality makes the policy in this respect direct discrimination. The
disparate impact it produces among religions remains indirect discrimination.

There might be reasons which would justify direct discrimination. Here is an example.
If a synagogue is hiring a Rabbi, or a church a priest, they would obviously insist
that he or she be Jewish in the first case or Christian in the second. And perhaps
this could be justified. But we would not call such use of the metric of religion
‘indirect discrimination’. We would say it is direct discrimination but
perhaps justified.

Even if the church or synagogue characterized their recruitment policy as
‘suitability’, and then defined the metric as not being any religion
other than Jewish or Christian, we would not re-characterize the recruiting criteria
as ‘indirect discrimination’. But is that not what is happening in the Achbita case? They want to exclude manifestation of religion
and other ‘convictions’. So they specifically use religion and
‘conviction’ as the metric for exclusion and simply call it
‘neutrality’. Does this make the discriminatory effect less direct
– whether justified or not?

Imagine the following hypothetical conversation between lawyer and client.

Client: I really don’t like all those religious guys with their crosses and
yarmulkes and hijabs serving my clients. Can I just prohibit that?

Lawyer: No, that would be direct discrimination specifically prohibited by the EU
law.

Client: So?

Lawyer: I’ll tell you what. Let’s add philosophical conviction too, which
incidentally is also prohibited and call it a ‘policy of neutrality’. At
worst it will be defined as ‘indirect discrimination’, for which the
tests are weaker; at best, since neutrality is legitimate purpose, all you might
need is to prove you have no back office jobs available. And thus you can get rid of
them altogether.

Since there seems to be such widespread consensus that what is happening in the case
is indirect discrimination, I offer the above analysis with lesser
‘conviction’.

6 From Chaya to Samira

I do not think, as indicated above, that the mores of any religion, not least Islam,
should be shielded from criticism (and there can be plenty), nor that practices
which are odious to our fundamental values need be accepted simply because they are
rooted in religious faith. And we may legitimately expect from those who come to
join us, in the phraseology of the defunct Constitution, ‘… along the
path of civilisation, progress and prosperity, for the good of all …,
including the weakest and most deprived; [and] to remain a continent open to
culture, learning and social progress…’, that they embrace our dreams
and values. But an essential component of those very values is our firm belief in
pluralism, and our commitment to tolerance and religious liberty. Our liberal states
should not behave like the confessional state of yore, and joining us should not
require abandoning one’s faith and religion or, without grave reasons, forcing
one to violate such. Just as our commitment to freedom of expression is put to the
test when the speech in question offends us, so our commitment to tolerance,
pluralism and religious liberty is put to the test when challenged. Whatever you may
think of, say, Islam, particularly odious is to paint an individual with a brush
dripping with group hatred.

I hope no one is so uncharitable as to think that I switched from Samira the Muslim
to Chaya the Jewess because of a concern of mine for my fellow Jews. For reasons
which are well known, the Jewish population in Europe is, historically speaking,
very small, and among them the number of Orthodox observant Jews such as Chaya is
miniscule.15 (If your impression is that they are numerous you may wish to check the
prejudice scales in your bathroom.)

For the same well-known reasons I do not think that one would ever see in any
respectable public space a poster such as this.

By contrast, representations such as the following photograph and much worse were and
are to be found prominently in many European countries during recent times, put
forward not by fringe groups but by what have become mainstream parties with
representation in our parliaments.

I see little difference between the two.

The policy of the company in our case feeds this. These posters, the intolerance and
even generalized hatred they represent, follow the syllogistic slide which defines
religious and racial prejudice and bigotry. Law apart, we have here a betrayal of
common decency and humanity. The threshold for justification of such policies should
be high. Sadly, in Achbita there seemed to be hardly any threshold
at all.

I find it hard to understand how the hands of whoever drafted and signed the judgment
in Achbita did not tremble when writing these words:

An employer’s wish to project an image of neutrality towards customers
relates to the freedom to conduct a business that is …, in principle,
legitimate, notably where the employer involves in its pursuit of that
aim only those workers who are required to come into contact with the
employer’s customers.

Or that the Company, should endeavor ‘…to offer her a post not
involving any visual contact with … customers’
(emphasis
added).

Yes, in theory it is about everyone. In practice it is about the Achbitas of our
European world. You are, we tell them, ok, provided you keep out of sight, conceal
your identity and your religion and do not come into contact with us.

In my view, this decision, apart from serious legal errors and impoverished
reasoning, does not reflect what Europe stands for.

Samira Achbita, you are my sister.

(For A.I.)

The Trump Jerusalem Declaration and the Rule of Unintended
Consequences

I need not add any comment on the political dimension of the Trump Declaration.
But legally speaking it may perhaps be cited as a striking example of the rule
of unintended consequences.

Two principal issues underlie the question of Jerusalem in international law: its
status as the capital of Israel and the status of the 50-year-old Israeli
annexation of East Jerusalem.

We are all aware that in the structurally still ‘primitive’ or crude
nature of central aspects of international legal process, the passage of time
plays an important role whether it concerns norm-setting or determination of
legal status. Situations of illegality slowly, sometimes imperceptibly, are
cured as the years go by. This may be through shifts in opinio
juris
in the formation and crystallization but also in the
reformation of customary law. And the same is true where recognition is the
critical factor in the determination of legal status. The pattern of
recognition, politically less embarrassing, is often manifested not through
positive declarations but through tacit acceptance and failure to protest.

Indeed, in reaction to acts (or lack thereof) rather than in the act itself, we
often seek to find the key to our legal determinations. Examples abound. To give
but one, consider the change as regards the legality of declaring an exclusive
economic zone in littoral sea space. Indeed, the acceptance, now firmly and
indisputably established, of the Armistice boundary between Israel and Jordan
including West Jerusalem, as the internationally recognized border of Israel was
the result of the processes I am describing.

Jerusalem, in practice, was the capital of Israel since its foundation and entry
into the UN. And various declarations notwithstanding, in the practice of many
states it was treated as such including the establishment or placement of
numerous embassies in West Jerusalem. The flight of embassies to Tel Aviv was a
result of, and explicitly in protest to, the post 1967 annexation of East
Jerusalem. But even after that, diplomatic practice, de facto, accepted the
capital status of Jerusalem in usages such as state visits, accepting the
credentials of Ambassadors by the President of Israel and endless other signs.
Underscoring the distinction between the issue of the status of Jerusalem as
capital and the status of the annexation of East Jerusalem, was, in the same
diplomatic practice, the rather rigorous abstention of many states from
participating in events or, to the best of their ability, acknowledging in other
practices, the sovereignty claim of Israel over East Jerusalem. Famously, in the
Hyatt Hotel (now under different ownership) which was built on the dividing line
between East and West, functions and booking of rooms in the west wing was
‘Kosher’ for many foreign diplomats but not in the east wing. The
emerging legal result was, as a result of this differentiated practice of
‘recognition’ and ‘non-recognition’, a colourable claim
that the status of (West) Jerusalem as capital was being consolidated over time,
in contradistinction to the status of the annexation.

All this has been upended by the Trump Tweetrine. (Yes, I know that on this
occasion there was, actually, a formal Declaration, though I find it hard to
dignify almost anything he does or says with the gravitas associated with the
word ‘doctrine’). The reaction of states, almost wall to wall, has
been such as to reduce almost to tatters, any probative legal effect that one
might have given to the aforementioned diplomatic practice, as distinct from the
formal official position on the status of Jerusalem as capital that until
recently was in most cases collecting dust and seemed to be destined to quiet
oblivion.

As to the second issue, even some of the few states which hurried to align
themselves with Trump (like the Czech Republic) were careful to emphasize that
it was West Jerusalem to which their embassy would be moving.
On this issue, too, the legal result of the Declaration has been the opposite of
what might have been intended or hoped for by some.

10 Good Reads

It is the time of the year once more when I publish my pick from some of the books
that came my way since my last ‘Good Reads’ listing. These are not book
reviews in the classical and rigorous sense of the word, for which you should turn
to our Book Review section. I do not attempt to analyse or critique, but rather to
explain why the books appealed to me and why I think you, too, may find them well
worth reading. They are listed in no particular order, except for the first one
which is definitely my choice for the year.

Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred
A. Knopf, 1982–2012)

I have a certain passion for political biography and like to think of myself as
something of a connoisseur. Why it has taken me so long to finally sit down and
read this much acclaimed treatment of Johnson might be because of its daunting
length. A fifth and final volume covering his post-elections years in the
Vietnam White House is eagerly awaited and apparently imminent. I am not going
to prevaricate with the ‘one of the most’ formula. This is
undoubtedly the finest of this genre that I have ever read. For those who might
wonder why they should spend precious reading time on Johnson I would like to
say that the “years” in the title are not just his years but a
political and social history of the USA over half a century. Not many would be
willing to set aside time to plough through all four volumes, though they amply
repay the effort. But I most strongly recommend, as a second best, to read just
Volume 4 (The Passage of Power). It essentially covers the period from
Kennedy’s assassination to Johnson’s first year in office. It
becomes a microcosm of the Johnson phenomenon. On the one hand, he was
undoubtedly, and this is meticulously documented, entirely ruthless and
politically (and in some measure financially) corrupt from his early days as a
student through his days in Congress until his accidental ascent to the
presidency. From those early days one gets the impression of a person interested
in power (and winning, winning, winning) for almost its own sake. He understood
the power of procedural command from his early elections in college politics
until his commanding mastery as Majority Leader in the Senate. And the lessons
we as readers learn about congressional politics remain illuminating, even
essential, 60 years later, in understanding the tortured relations of, say,
Obama and Trump with Congress. I would say an indispensable lesson. You
don’t know what you don’t know until you have read such. And, of
course, in our minds there is always the Johnson of ‘Hey hey LBJ, how many
kids did you kill today’.

Now comes the ‘On the other hand’ which makes both the personality of
Johnson so intriguingly complex and our judgment of him so difficult. He grew up
in abject poverty – no exaggeration. He pined for the ham sandwich at
school but could only afford the cheese one. He and his family literally
scratched a living out of the barren soil on which they lived. Like Clinton
decades later, he grew up with and alongside a black and Hispanic population in
the most natural way. The result was, his greed for power and avarice
notwithstanding, a person with a huge and genuine commitment to social justice
and, miracle of miracles for a son of Texas, bereft of that visceral racism, not
mere disdain for but real disgust towards blacks, which was so present in the
South (and not only the South) of that era and indeed has not been fully
eradicated today. In his deep feeling for the poor, he made no distinction
between black and white.

The result was that in his first months in office as the Accidental President,
combining his commitment to social justice and a lifelong honing of his
political prowess, he managed to achieve infinitely more than Kennedy, fluent
and charming, had managed to achieve in three years as President. Infinite is
the right word since Kennedy achieved close to nothing. And he did so whilst
risking his chances in the elections to come in November of 1964. The passing of
the Civil Rights Act of 1964 – and he deserves the lion’s share of
the credit – was epochal. And though he dropped what at the time seemed
the centrepiece of civil rights, namely voting rights, true to his word to
Martin Luther King, he passed that in his first year as elected President. His
overarching Great Society legislation, the war on poverty and all that, though
imperfect and still work in progress, changed America forever. In his domestic
agenda he stands, in my view, equal to Roosevelt and, a matter of personal
taste, more likable. It will be hugely interesting to see what Caro makes of
Johnson’s Vietnam years in the pending final volume, though the impression
given from his actions in his first year was that he was ‘out of
it’, having neither an interest nor the experience to handle foreign
affairs, and just ate out of the hands of those bright young mandarins he
inherited from Kennedy, not least Robert McNamara. His sense of inferiority and
mixture of disdain, fear and admiration for Bobby Kennedy are among the most
riveting pages in the biography.

Caro manages what is rare in biography generally and political biography in
particular, to demonstrate all along great empathy for his subject without
confusing that with sympathy. He is sympathetic and antipathetic, praising and
censorious in just the right measure.

I bought the four volumes in hard cover for a pittance on, quelle horreur,
Amazon. This is not a good read – it is a compelling read.

Ludovic Hennebel, Hélène Tigroudja, Traité de droit
international des Droits de l’homme
(Editions Pedone,
2016)

No, I have not read all 1461 pages of this impressive work. It is, in mitigation,
not the kind of book you read from cover to cover but one that you consult. And
consult it I did, extensively, with great reward. It covers, take a deep breath:
universal protection, regional protection, theories, foundations,
interpretation, application, responsibility and remedies. It is a combination of
both a Law Book and a book about the Law. Impressively researched, exhaustively
referenced both to primary and secondary sources, surprisingly fluid to read, it
gives in each of its sections the what, the why and the how of its topic. Here,
too: not exactly a ‘good read’, but good to read.

Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, 2015)

There are IL books that one reads (or should read) not because they advance our
own research agenda – to be processed into learned footnotes – but
simply as a means of enhancing our general scholarly literacy, the way I know
you all read EJIL or I.CON from cover to cover. Approach Mälksoo with this
spirit and you will not be disappointed.

This is purely and simply a good read. It weighs in at just under 200 pages, and
you can read it for pleasure in two or three sittings. You will learn an awful
lot as well as become wiser – a good test for fine scholarship. The
approach of Mälksoo is to explain the current Russian approach by an
exploration of the preceding history or histories. I came to the book with a
scant knowledge – what I had learnt from Nino Cassese’s illuminating
International Law in a Divided World – which, for all its worth, did not
purport to be Russia specific in its exposition of the Second World. Where one
may have expected a story of ruptures and revolution one discovers some
surprising continuities. Particularly insightful are the sections dealing with
the relationship of international law to the domestic legal order, and I do not
mean just in the technical sense of the issue.

Aldo Schiavone, Ponzio Pilato: Un enigma tra storia e
memoria
(Einaudi, 2016); Pontius Pilate: Deciphering a
Memory
(transl. Jeremy Carden, Liveright, 2017)

I have always been dismissive of the huge literature on the Trial of Jesus before
Pontius Pilate. We have scant external sources on the Trial so that our main
reference are the Gospel accounts according to which Pilate was but the
executive arm of the Sanhedrin before whom the principal, perhaps only, trial
took place. Why so much writing then on the Trial before Pilate? It is, I
reasoned, a classical so-called Streetlight Effect: the proverbial looking under
the streetlight rather than where the key actually dropped out of your pocket.
Since most scholars were familiar with Roman Law rather than Jewish Law they
wrote about that which they knew.

I have never read anything by Schiavone that was not both original and profound.
This book does not disappoint. He does not fall into the Streetlight error. The
appearance of Jesus before Pilate is central but not forced into a legal
straitjacket. What’s more, the book – elegant and brief –
explores the personality and the circumstances of his governorship as well as
reconstructing the Passion and the events leading to the crucifixion. There is a
tension between the Pilate we know from history and his figure in the Gospel
narrative. Schiavone navigates that perfectly. If it’s a long time since
you addressed your mind to those events which reshaped history and what we call
today The West, and not long ago, Christendom, you could do better than read
this book. More of an Easter read than a Christmas one, but a good read at any
time.

Eduardo García de Enterría, Fervor de Borges (Editorial Trotta, 1999)

García de Enterría was, until his death in 2013 at the age of 90, a
figure larger than life in Spanish public law and in law generally. He served as
the Spanish judge for several years on the European Court of Human Rights and
his list of accolades extends from here till further notice. It is in this
capacity that I knew him and even had the privilege to work alongside him on the
Committee of Jurists of the European Parliament for several years.

Imagine my surprise when I discovered, just recently, a little book he wrote on
Borges the poet. The title of the book is a play on Borges’ own book of
poems Fervor de Buenos Aires. Despite having read more than once all of
Borges’ short stories translated into English – and it seems that
all have been translated – I was simply unaware of Borges as a poet,
though his volume of poetry, I have now discovered, exceeds considerably his
fictions. There are, obviously, some translations, but as an excuse for my
ignorance, far less known. When you finally approach Borges the poet you will
discover another reason for the relative anonymity of his poetry outside the
Spanish speaking world compared to his short stories. The poetry is difficult
– uneven, something it is hard to say about his stories – and not
immediately accessible outside the cultural context in which they are situated.
In my view this must be true for some of his poems even for those within that
culture. And this is the great virtue of García de Enterría’s
little book: it helps enormously in learning to understand, appreciate and be
moved by the poetry. García de Enterría is categorical in his tastes
and judgments – but these are fine and sensitive. He works his way (and
yours) through a handful of poems and, like a good curator of a museum or art
critic, pours light so that you can see the light.

Guy Fiti Sinclair, To Reform the World – International
Organizations and the Making of Modern States
(Oxford University
Press, 2017)

Full disclosure – I already read an earlier version of this book when
presented as a doctoral dissertation, though I was not a member of the examining
board, and, as you will all know, Guy Sinclair is the Associate Editor of EJIL.
Since these are not book reviews, but my personal recommendations, and since I
found this a particular rewarding read, I did not think I should refrain from
offering this recommendation.

This is another example of a Law Book that is also a book about the Law, which in
recent years has happily become the Gold Standard of doctoral dissertations. You
will get chapter and verse on the manner in which International Organizations
manage their competences and manage to expand such at times with creative
hermeneutics. But the book goes well beyond that. Sinclair advances a veritable
thesis: that in some ways IOs have been captured by a Eurocentric liberal (and
to some extent capitalist) world view (this is my rendition of the thesis) and
nobly (or perhaps otherwise) are not simply in the business of world peace,
international cooperation, motherhood and apple pie, but also in the business of
exerting influence, even shaping the ethos and telos, structure and function of
modern states, the cooperation among which is their more traditionally perceived
function, or in more recent times, their ‘governance’ function.

There is a very fine-grained and rich analysis of the way legal structure and
political process of IOs combine to produce the effect claimed. And the book is
elegant and readable, you can actually enjoy the reading.

Matthew Saul, Andreas Follesdal, Geir Ulfstein, (Eds.) The
International Human Rights Judiciary and National Parliaments
(Cambridge University Press, 2017)

I am usually rather sceptical about edited books for reasons I explained in a
previous Editorial. The topic of this volume intrigued me since there is rather
a dearth of research and writing on the role of parliaments in the human rights
universe, a discipline dominated by court-gazing and hermeneutics. When there
are interactive studies they tend to be about judicial interaction,
international and national, or, in recent times the rich (oh, so rich one gets
indigestion) on judicial borrowings and the like. I was put off by the
Introduction by the three editors, which was the usual fare for an edited book:
some slight prefatory words on the project and a roadmap of the various
chapters, which, I have often suspected, is there for lazy book reviewers. I am
glad I read on since the actual chapters, including, even especially, those by
the three editors are excellent, and what I found lacking in the Introduction
was to be found in the concluding chapter by Matthew Saul – an analytical
framework, a critical vision and a normativity in just the right proportions.
The book is still, as it proclaims, court-centric, but focuses on the
interaction of courts, notably European but also the Inter-American, with
parliaments as institutions rather than parliaments as authors of violative or
otherwise legislation which come before them. This is an edited volume which has
managed to follow a rather tight scheme covering the various aspects of
parliamentary involvement in human rights. Indeed, perhaps the biggest gain for
me was that not having ever thought about this systematically, I learnt not only
about the interaction but about how to think about the role of parliaments in
ways that were new. Appropriately, all chapters fully internalized the need to
situate the law in political theory of democracy and human rights. Social
scientists might complain about a certain lack of quantitative empirical
analysis – but let them, then, pull their sleeves up and fill the gap. An
important, useful and, otherwise it would not be here, a good read too.

Bernard E. Harcourt, Exposed – Desire and Disobedience in the
Digital Age
(Harvard University Press, 2015)

The topic is not new; indeed, we are inundated by cries of woe about the power of
the digital corporate dinosaurs, the invasion of our privacy, and the use made
by them of the data mined by our internet-dominated lives. The value of this
book, which Benedict Kingsbury and I used in our Seminar on International Law
and Google as one of the key texts, is the trenchant, if passionate (not
altogether unjustified, though at a certain point perhaps somewhat excessive and
even grating) manner in which Harcourt walks us through this labyrinth and
explains and demonstrates its profound implications for polity, our sociality
and the human condition itself.

What I found most appealing in the book was the way the author eschews an easy
narrative of villainous (American) corporations and government agencies which
are either asleep or captured with us, you and I, being the victims of such. He
puts a mirror before us and shows how we are at times willing accomplices in the
culture of exhibitionism and self-exposure which is a hallmark of the age. Yes,
at times our options are foreclosed, but this is oftentimes but a fig leaf, a
weak alibi for our own exhibitionist and voyeuristic appetites.

I am not sure if Harcourt’s strategies of ‘disobedience’ can
amount to more than gestures. But even if trapped, he will not let us off the
hook as being ultimately, in the democracies in which we live, responsible also
for the very structures in which we are trapped.

A bracing read – but still very good.

María Elvira Roca Barea, Imperiofobia y Leyenda Negra – Roma,
Rusia, Estados Unidos y el Imperio español (Siruela, 2016)

I am not sure if a ‘good read’ is appropriate in this case. And I am
confident that once translated into English it will provoke a storm. The book
cover lists the author as having worked for the Spanish Consejo Superior de
Investigaciones Cientifícos and as having taught at Harvard. It is
revisionist history of the Spanish Empire framed within a more general theory
and phenomenology about the way empires, according to the author, provoke
Leyendas Negras which could be rendered as ‘dark, malicious
legends’. It has been a runaway best seller in Spain, subject to praise
and harsh criticism (see for example in the XX Siglos blog the critique by
Estaban Mira Caballos, 13 Sept. 2017). Roca Barea does not hold her punches. The
Protestant European ‘North’ is one villain of the piece, Noam
Chomsky another in her (in my view often insightful and in some respects
original) discussion of Anti-americanism and there is more. With some shades of
the Jamestown affair in our sister Journal of the History of
International Law
, Roca Barea invites us to reconsider downwards
(not to whitewash) the scope and scale of Spanish atrocities in their conquest
and rule over much of Central and South America and similarly of, say, the
Inquisition in Spain – the conventional history characterized by her as
Hispanophobia driven by, inter alia, Lutheran nationalism. She is at her best, I
believe, not so much in the history and historiography of the Spanish Empire
itself – about which one can cavil – as in her parsing of the texts
and attitudes over the centuries, attacking such which, as she demonstrates
persuasively, are marred, in an almost macabre twist of a twist, by distinct
racist elements (the Spaniards as a degenerate race) whose moral fibre was
corrupted – in a twist on a twist on a twist – by, surprise,
surprise, Jewish influence. To my knowledge she is the first to subject such to
critical analysis and in my view these parts of the book cannot be dismissed. It
is the kind of book the intrinsic value of which will only be clear once it is
subjected to the slow process of serious historical and historiographical
analysis. This will not be easy, given the inevitable contemporary political
mills for which the book has already become grist. I suppose that for many
beauty or ugliness will be in the eye of the beholder rather than in the book
itself. It is not exactly a ‘good read’ but, despite a certain
polemical style, it is one that cannot tout court be dismissed as diatribe.
Caveat Lector!

Claudio Rodríguez, Alianza y Condena (Ediciones de la
Revista de Occidente, 1965); Alliance and Condemnation (transl.
Philip W. Silver, Swan Isle Press, 2014)

Should Roca Barea leave a mixed taste in your mouth, Rodríguez would be the
perfect dessert to wash it away. Although he won the Prince of Asturias Prize
for Letters in 1993 (six years before his untimely death from cancer at age 65)
Claudio Rodríguez is relatively unknown outside literary circles, even in
his home country of Spain. I discovered him just this last year and am still
under the spell. His poetry is personal and exquisite – in form, tonality
and delicacy of emotion, though extremely powerful, even shocking at times.

Alianza y Condena (Alliance and Condemnation) is a good place
to start since it exists, too, in a particularly felicitous bilingual edition
translated by Philip W. Silver, Emeritus Professor of Spanish Literature at
Columbia. Here are a couple of excerpts to whet your appetite:

Adiós

CUalquier cosa valdría por mi vida

esta tarde. Cualquier cosa pequeña

si alguna hay. Martirio me es el ruido

sereno, sin excrúpulos, sin vuelta,

de tu zapato bajo. ¿Qué victoria

busca el que ama?

….

Goodbye

I’D take anything for my life

This afternoon. Any small token

If there is one. It’s martyrdom,

the calm, determined, unforgiving sound of your steps.

What victory do lovers seek?

….

Mala Puesta

LA luz entusiasmada de conquista

Pierde confianza ahora,

Trémula de impotencia y no se sabe

Si es de tierra o de cielo. Se Despoja

De su íntima ternura

Y se retira lenta.

….

Faded Sunset

THE light, excited by conquest,

Loses confidence now,

Trembling with impotence. And we wonder

If it belongs to the earth or sky. It shrugs

Off its intimate tenderness

And slowly withdraws.

….

Enjoy and be edified!

A propos Book Reviewing

I am sure that many of our readers have their own views on their preferred
international legal journal. But it is hard for me to believe that there will be
many who do not assign pride of place to EJIL’s Book
Review section under the editorship and curatorship of Isabel Feichtner. In the
selection of books for review, in the rigour imposed on reviewers, in the
exploration of different forms for featuring books she has made EJIL second to none. Isabel Feichtner is stepping down as
Book Review Editor, though happily she will remain a member of the Board of
Editors. She deserves our deep gratitude. Christian Tams has generously agreed
to take over from her. We wish him every success.

EJIL Roll of Honour

EJIL relies on the good will of colleagues in the international
law community who generously devote their time and energy to act as peer
reviewers for the large number of submissions we receive. Without their efforts
our Journal would not be able to maintain the excellent standards to which we
strive. A lion’s share of the burden is borne by members of our Boards,
but we also turn to many colleagues in the broader community. We thank the
following colleagues for their contribution to EJIL’s
peer review process in 2017:

Ademola Abass, Maartje Abbenhuis, Tawhida Ahmed, Amanda Alexander, Karen Alter,
Milagros Alvarez-Verdugo, Dia Anagnostou, Antony Anghie, Kenneth Armstrong,
Helmut Aust, Ilias Bantekas, Michael Barnett, Arnulf Becker Lorca, Richard
Bellamy, Eyal Benvenisti, Stephen Bouwhuis, Eric Brabandere, Damian Chalmers,
David Chandler, Simon Chesterman, Sungjoon Cho, Ben Coates, Matthew Craven,
Michael Crawford, Luigi Crema, Kristina Daugirdas, Gráinne de Búrca,
Phillip Dehne, Rosalind Dixon, Christian Djeffal, Alison Duxbury, Franco
Ferrari, Francesco Francioni, Micaela Frulli, Paola Gaeta, Mónica
García-Salmones Rovira, Leena Grover, Jonathan Gumz, Monica Hakimi, Gerd
Hankel, Gina Heathcote, Laurence Helfer, Kevin Heller, Caroline Henckels,
Gleider Hernández, Loveday Hodson, Bernard Hoekman, Douglas Howland,
Isabel Hull, Stephen Humphreys, Ian Hurd, Fleur Johns, Leslie Johns, Ian
Johnstone, Heather Jones, Daniel Joyce, Daniel Joyner, Helen Keller, Alexandra
Kemmerer, William Keylor, Thomas Kleinlein, Martti Koskenniemi, Sari Kouvo,
James Kraska, Samuel Kruizinga, Shashank Kumar, Malcolm Langford, Randall
Lesaffer, Mark Lewis, David Luban, Mikael Madsen, Debora Malito, Lauri
Mälksoo, Nora Markard, Tanja Masson-Zwaan, Petros Mavroidis, Lorna
McGregor, David McGrogan, Campbell McLachlan, Frédéric Mégret,
Liam Murphy, Stephen Neff, Vasuki Nesiah, Luigi Nuzzo, Therese O’Donnell,
Henrik Olsen, Alexander Orakhelashvili, Sundhya Pahuja, Martins Paparinskis,
Andreas Paulus, Joost Pauwelyn, Clint Peinhardt, Victor Peskin, Niels Petersen,
Yannick Radi, Surabhi Ranganathan, Morten Rasmussen, Cecily Rose, Cedric
Ryngaert, William Schabas, Sibylle Scheipers, Stephen Schill, Thomas Schultz,
Christine Schwöbel, Joanne Scott, Gerry Simpson, Sandesh Sivakumaran,
Peter Stirk, Oisin Suttle, Katie Sykes, Anastasia Telesetsky, Christopher Vajda,
Isabel Van Damme, Antoine Vauchez, Milos Vec, Ingo Venzke, Ana Filipa Vrdoljak,
Robert Wai, Andrew Webster, Ramses Wessel, Jason Yackee, Margaret Young, Aldo
Zammit Borda

In This Issue

This issue presents a cornucopia of insights and perspectives on international
law. It opens with a pair of articles that reflect EJIL’s long commitment
to explore diverse theoretical and methodological approaches. First, Catherine O’Rourke combines theoretical engagement
with an empirical, sociological methodology to offer a unique perspective on the
engagement of feminist activists with international law. We invite readers to
take a look at our EJIL: Live! interview with the author. Second, Anthony Reeves proposes an alternative approach to
substantiating the right to punish, focusing on the capacity to respond to the
reasons for punishment and analysing universal jurisdiction to show the
improvements the alternative model makes.

The next set of articles focus on questions of responsibility. Luke
Glanville
examines the duty to protect human rights beyond
sovereign borders, exploring the thinking of a series of Western natural law
theorists both to expose the source of this duty in international law and to
retrieve forgotten ideas that might be reconsidered. Sandesh
Sivakumaran
traces the ‘piecemeal’ emergence of an
international law of disaster relief and analyses the general techniques by
which this body of law is developing. Lastly, Jan Klabbers investigates whether international organizations can be held responsible under
international law for a failure to act, introducing a conception of ‘role
responsibility’ to address this thorny issue. We think it is a
particularly valuable contribution on a trendy topic the literature on which is
often characterized by a lot of hot air.

A selection of articles from the Fifth Annual Junior Faculty Forum for
International Law exposes the innovative thinking of a new generation of
scholars. Neha Jain considers the role of ‘radical’
dissents in shaping the discourse of international criminal law in the context
of mass atrocities. Lawrence Hill-Cawthorne explores the nature
of state and individual rights under international humanitarian law, and their
relationship to a more general identity crisis in that body of law. Cheah W.L. examines the rule of law dynamics in war crimes
trials pertaining to the desertion of British Indian Army soldiers conducted by
British colonial authorities in postwar Singapore.

This issue’s Roaming Charges takes us to Bogotà
where the solemnity of Ash Wednesday provides a moment of dignity.

We are pleased to present in this issue an Afterword to the Foreword written by
Laurence Boisson de Chazournes, which featured in the first issue of this
volume. Yuval Shany mostly agrees with Boisson de
Chazourne’s account of an evolving ‘managerial approach’;
however, he is less convinced that international courts are truly committed to
such an approach or that such an approach is likely to succeed in future without
more far-reaching reforms. Thomas Streinz suggests that greater
attention could be given to who wins and who loses as a result of coordination
among international courts and tribunals, as a way into exploring what motivates
those efforts and how various actors contribute to them. Veronika
Bilkova
focuses on the normative dimension of the phenomenon
Boisson de Chazourne describes, giving greater emphasis to the threats that
managerialism can pose. Sergio Puig likewise strikes a note of
caution that the evolution of procedures adopted by international courts and
tribunals might result in suboptimal outcomes. Laurence Boisson de
Chazournes
offers a rejoinder to her critics.

Following the Afterword, we feature another Debate centring on an article by Yahli Shereshevsky and Tom Noah, who adopt
an innovative experimental approach to assess the possible effects that exposure
to preparatory work has on the interpretation of treaties. This is only the
second time we publish an article in EJIL utilizing the methodology of
‘experimental law’ and appropriately it comes from the hands of two
young emerging scholars. We encourage you to take a peek at the EJIL: Live!
interview with one of its authors, Yahli Shereschevsky. Given the interest that
is bound to be generated by this article, we have decided to present a long
Reply by Jeffrey L. Dunoff and Mark A.
Pollack
, who reflect at length on the ‘experimental turn’
in the study of international law more broadly.

The issue closes with a Critical Review of International Governance by Rebecca Schmidt, who examines regulatory cooperation
between public and private actors at the global level, grounding her analysis in
the cooperation between the Olympic Movement and the United Nations
Environmental Programme.

For the Last Page, the dust, heat, and sweat are almost palpable
in Gregory Shaffer’s extraordinarily vivid poem of life
and politics in Kathmandu.

JHHW

© The Author(s), 2018. Published by Oxford University
Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email:
journals.permissions@oup.com

  • Publication: European Journal of International Law
  • Publisher: Oxford University Press
  • ISSN:  0938-5428 | E-ISSN 1464-3596
  • Original url: https://academic.oup.com/ejil/article/28/4/989/4866329?rss=1

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