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This Symposium explores a unique and relatively understudied intersection of global law and governance, on the one hand, and gender and feminist theory, on the other—which we label “football feminism.” Football (soccer), we hazard to claim, occupies a place in the global space unlike any other cultural/economic phenomenon. Given the mass global consumption and veneration of football, it plays a particularly powerful role in shaping, validating, and entrenching gender relations far beyond the sport, all around the world. Football matters in this way, whether we like it or not, so its governance should attract scholarly feminist critique. Significantly, the primary regulator of football is a private organization headquartered in Zurich, controlling billions of dollars and a worldwide network of national football associations. The “constitution” of this organization—the FIFA Statutes—includes a prohibition on gender discrimination and, as of quite recently, commitments to promote women in football and to respect all internationally recognized human rights. However, many questions remain as to the specific meaning of these good-governance and human-rights norms in the context of football, as well as to the seriousness of the commitment to their actual implementation and the availability of mechanisms for enforcing them vis-à-vis the powerful private organizations that govern the sport. Together, these organizations embody a distinctive form of global governance that raises particular questions of legality, legitimacy, democracy, transparency, and accountability. The contributions to this Symposium consider some of these questions as they relate to gender inequality in football, both on and off the pitch.

In this Dialogical Epilogue, I address a series of both general and specific questions to some of the contributors of this volume. The intent is to seek clarification on or even contest one or more propositions presented in the various chapters. In the role of a “Consul of the Readers” I enter into a conversation with the book’s authors to discuss some of the fundamental questions to which Sentenza 238/2014 gives rise and that have, at best, received only indirect answers in the various chapters. I believe answering them will enhance the value of each contribution and of the book as a whole.

'EJIL Symposium Issue: International Law and Democracy Revisited : Introduction to the Symposium' Published: 19 June 2021 The European Journal of International Law was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology. Many predicted or expected that liberal democracy would become regnant in the world and a New International Legal Order would replace the old First World/Second World/Third World distinctions. Thirty years later, at the occasion of EJIL’s 30th birthday, EJIL’s Scientific Advisory and Editorial Boards considered it opportune to revisit the question of international law and democracy: in 2019, the state of democracy, whether liberal or social or any other variant, seemed to be far from sanguine. In many regions of the world, democracy seemed under assault. The stakes are high. What is the state of the scholarship on international law and democracy? What has happened to that once seemingly overcrowded bandwagon? Who is still on it? Is it still moving? And if so, in which direction? What are those who are thinking about international law and democracy concerned with? In organizing this Symposium, we did not follow the classical design of a predetermined set of topics and invited scholars. Instead, in the spirit of democracy perhaps, we issued a call for papers so as not to be locked into our preconceptions of what is important and who is important, but let the field speak for itself.

Polarization in today’s politics, pre- and post COVID, transcends nations, states regions and continents. It’s a feature of politics which, in and on itself, when played to extremes by demonizing one’s opponents, it threatens democracy itself—since it frays the demos some cohesion of which is necessary for the legitimacy of majoritarianism, one of the pillars of national democracies. Its lexical manifestation is to be found with expressions such as ‘traitors’ or ‘not real’ Americans, Italians, Israelis—take your pick and fill in the gap.It has, lamentably in my view, a spillover effect also into the academic world of scholarship. A word of criticism of, say, the European Court of Justice instantly brands you a ‘Eurosceptic’ and one of ‘them’. To speak of Universal Values, casts you as an enemy of this or that national cause. This is not to say, not at all, that one cannot bring to one’s scholarship a fully engaged normative and ethical commitment, especially in the field of law which has, or should have, at its roots a commitment to justice. But it militates against careful listening, complex reasoning and understanding and more fine grained normative judgments. Justice is oftentimes not black and white.It is particularly so when it comes to dealing with the phenomenon of Populism which has moved from the fringe to the center of politics. Trying to understand Populism is not akin to justifying it.

Resumen Traducción al español del texto seminal del profesor J. H. H. Weiler en el que explora la relación entre la democracia, la gobernanza y el derecho internacional a lo largo de la historia, a través del novedoso enfoque de la geología. En la interacción entre estos tres conceptos y en la pregunta por la legitimidad del derecho internacional, el profesor Weiler identifica tres etapas claves (transaccional, comunitaria y regulatoria) que permiten comprender con mayor precisión este complejo fenómeno. Abstract Spanish translation of Professor J. H. H. Weiler's seminal paper in which he explores the relation between democracy, governance and international law throughout history with a novelty geological approach. In the interaction between these concepts and questioning the legitimacy of international law, Professor Weiler identifies three key layers (Transaction, Community and Regulation) that enable a better understanding of such a complex phenomenon.

Our purpose in this Foreword article is to revisit, update, and theoretically revise Mauro Cappelletti’s path-breaking work Judicial Review in the Contemporary World. Our main cartographical device, in homage to Cappelletti, is the wave metaphor. We map three sequential and overlapping worldwide, global waves of judicial review within a constitutional order. The first wave is the series of “constitutional revolutions” within national legal orders. The second wave is the emergence of international law as the source of the higher law which courts use in their exercise of their power of judicial review. The third wave is a response and reaction to the first and second waves: one dimension of the third wave is the attempt of domestic courts to make up for the rule of law, democratic and identitarian lacunae in transnational governance (voice). Another dimension—exit—is the set of instances in which courts (and states) seek to exit the first and/or the second wave. The interplay between the waves and their dialectical features constitute the explanatory framework we offer in this article. By highlighting the dialectical relations within and between waves we hope to challenge a dominant narrative on constitutionalization processes as progressive and evolutionary.

A partir del caso Lautsi (una demanda de retirada del crucifijo de la escuela pública italiana ante el Tribunal Europeo de los Derechos Humanos), el autor ofrece una reflexión sobre «Libertad de religión» y «Libertad frente a la religión» (o libertad positiva y negativa). Se compara la respuesta de los distintos modelos europeos y se muestra la falsedad de la pretendida neutralidad del laicismo. El análisis viene acompañado por el texto de la intervención oral del autor ante el Tribunal Europeo de los Derechos Humanos, en nombre de varios países miembros.

This essay examines, first, the reasons for the extraordinary impact and iconic status which are attached to Van Gend en Loos. It argues that the explanation lies in a confluence of structural factors and not in the "direct effect" doctrine simpliciter. It then looks at the "darker" side of the case - a proxy for governance - its contribution to a European narrative of efficiency which disregards the traditional mechanism of democratic legitimacy.

The question whether jus in bello and jus ad bellum should interact, or remain in hermet ically sealed spheres, has generated a voluminous and vociferous body of contemporary literature. The goal of this article is to take a step back from the particulars of the arguments and examine the shape and direction of the debate itself. We trace how the debate has evolved in response to political culture and sensibilities, focusing in on paradigmatic points throughout the 20th century. In each era the discussion on how these two areas of law should, or should not, intersect arises. And contrary to what might be implied by the recent debate where both sides often rely on "fundamental principles", the dialogue regarding the relationship between jus in bello and jus ad bellum is not a static argument. The discourse is dynamic and politically contextualized - impacted by, and impacting upon, the external controversies of the day. Certain consistent threads have guided the debate - first order political interests, institutional considerations, and consequences, and a legal and sociological conservativism run throughout. Distinct visions and assessments of the morality of war and who is to blame for its evils and how best to work towards peace also push and pull the flow of debate. Frequently, the positions on jus in bello and jus ad bellum serve as proxies for deeper or shallower courses of discussion. And although the contemporary discourse is more fractured, these same influences are discernable today.

European legitimacy discourse typically employs two principal concepts: input (process) legitimacy and output (result) legitimacy. But a third concept, political messianism, is central to the legitimation of Europe, though less commonly explored. In the current European circumstance, however, each of these three concepts is inoperable. Any solution to the crisis of Europe will have to draw upon the deep legitimacy resources of the national communities, the member states.

Typically and importantly, in exploring the systemic aspects of the Union in our attempts both to reach conceptual understanding as well as, instrumentally, to explain its success and failures, we reach out to the political and the legal. As regards the former, our systemic approach is to focus on institutional structure and decisional process. As regards the latter, our systemic approach focuses not on the substantive, material, primary rules of Union law but on what we commonly call the “legal order” and its own operating system—the systemic secondary rules and principles that hold together the substantive content. The interaction between the political and legal for long has been a mainstay of the field, a rich and productive seam, the mining of which has enabled us to give a broader and deeper understanding of both the conceptual and the operational. In this exploratory essay, I reach out to prior questions as regards both the political and the legal, questions concerning the culture that undergirds political structure and process as well as legal order. Political and legal culture are “prior” in an ontological sense, they inform specific institutional arrangements and, at times give them meaning. Culture, including political and legal culture, is never static. It may inform the specific institutional arrangements, but, in turn, it is itself informed, shaped, and modified by the arrangements in a continuous cycle of interaction. This poses a formidable methodological Gordian knot, which may explain why, despite our longheld understanding of the importance of culture in any systematic analysis of polity, it has received somewhat less attention in European Union studies. My way of cutting through the knot, rather than unraveling it, has been to examine the temporally “prior,” the prior-in-time, through what, I hope, is a fresh look at some of the most noted foundational instruments (texts) of European integration. This is an inevitably limiting methodology since it cuts out the dynamic, that continuous

Through a close reading of the Maastricht Decision of the German Federal Constitutional Court Weiler examines critically the so-called No-Demos Thesis according to which the absence of a European Demos precludes democratisation of the Union at the European level and requires the mediation of Member State institutions. He traces the roots of this thesis to Carl Schmitt and argues that it represents a failure of the Court to understand the Union in terms different from the Schmittian strand in German constitutional theory. He claims, inter alia, that the No Demos thesis is premised on an organic understanding of peoplehood deriving from the European Nation-State tradition which conflates nationality and citizenship and can, as a result, conceive of Demos only in statal terms. Weiler first presents an alternative view of the Union and of supranationalism and then offers a non organic view of Demos and argues for a ‘European’ notion of membership in which each individual would belong to multiple demoi defined in different ways.

The controversial gambling decision of the Appellate Body is mostly important because of examination of the nature of Access under Article XVI GATS, the relationship of that Article to Articles XIV and XVII GATS, and the parallels with Articles III, XI, and XX GATT. Notably, the Appellate Body took the position that an apparant internal regulatory measure, which, nonetheless, had equivalent effect to a zero quota, violated Article XVI GATS. A similar measure in the area of goods would have been examined under Article III GATT and require a showing of discrimination. The facts of the case would have allowed the decision to be based on Article XVII GATS. Most of this paper deals with this issue. We agree with this interpretation of Article XVI by the Appellate Body but are critical of its hermeneutics, suffering from a textual fetish and a policy phobia. Some other elements in the decision are also examined critically.

The author demonstrates how European integration policy can gain by a proper understanding of the doctrine of Redemptoris Missio. The Catholic teachings expressed in this encyclical are concerned with tolerance, respect and inclusion, concepts inextricably connected with freedom. The author invites us to reflect on both a political and an individual level.

Introduction This chapter reviews the decision by the Appellate Body (AB) regarding measures affecting the importation of apples in Japan. Section 2 of the chapter presents some background facts. Section 3 considers the Sanitary and Phytosanitary (SPS) agreement and emphasizes the fact that it imposes a discipline on risk-reducing measures even in the absence of discrimination or protectionism. Section 4 discusses how the evaluation of risk-reducing measures can be undertaken in the context of the SPS agreement. Our discussion focuses on two issues: the scope of the mandate given to the adjudicators and the standard of review that they should apply. We emphasize the difficulty of the task faced by the adjudicators, namely to distinguish between determining the level of risk that a country will find optimal to support (which cannot be challenged) and determining whether risk-reducing measures are necessary to achieve the chosen level of risk. We further observe that the common methodology used by Panels, namely to evaluate the existence of risk in the absence of risk-reducing measures, has limited applicability. We also discuss how this approach can be abused, leading the adjudicators to slip from an evaluation of whether the measures are necessary to achieve a given level of risk to an implicit challenge of the level of risk itself (which should remain the preserve of the Members). Regarding the standard of review, we argue that a lower standard should be applied to measures that do not threaten fundamental principles like nondiscrimination.

Following the dramatic No votes in the French and Dutch referendums on 29 May and 1 June 2005, a need was felt in the European constitutional law profession to react to the shock.EuConst invited members of its Board and members of the European Constitutional Law Network to write a short comment about possible and possibly salutary effects of the events on the ways of European scholarship and teaching. Below are the reactions received. Authors are all members of ECLN and/or the Board of EuConst.The contributions to this issue of EuConst by Jacques Ziller, Sacha Prechal and Herman van Gunsteren carry their comments on the events incorporated.

1. Premise At the core of this essay is a simple proposition: The defining feature of Europe’s new constitution is a word, an appellation. It is not the content of the Treaty establishing a Constitution for Europe that gives it epochal significance but the fact that an altogether run-of-the-mill treaty amendment has been given the grand name of Constitution. The significance of the Word is not monolithic. To capture the different, oft-contradictory shades, the reader will have to keep several balls in the air at the same time. The Word has had, and will continue to have, enormous political impact (ball one) on the process of adopting the constitution (ball two) and on its subsequent life (ball three). Whatever the values of the observer, the impact will be shown to be both positive (ball four) and negative (ball five). It is not only political impact that the Word imparts. It will become a tool for understanding some of the core conceptual implications (ball six) that Europe’s particular constitutional choice implies. As this essay is written in my habitual narrative style, rather than following the systematic structure implied by these categories, the reader may wish to keep the balls in mind as an informal interpretative key.

The facts of EC – Sardines are simple enough. A European Communities (EC) regulation stipulated that the designation Sardines could be used on preserved fish only for the genus Sardina pilchardus. The broad rationale claimed for this measure was to prevent consumer confusion. Allegedly European consumers associated the appellation “Sardines” with the pilchardus genus. Subsequently the Codex Alimentarius Commission set an international standard which effectively would allow other types of fish e.g. the genus Sardinops sagax, to use the word Sardine as part of its packaging designation. Peru, which exports Sardinops to Europe could not, under the Community regulation, use the designation Sardines in any shape or manner even though this prohibition would be contrary to the international standard set by the Codex Commission.

The papers presented in the following colloquium for the European Journal of International Law are the result of the inaugural Annual Junior Faculty Forum for International Law, held at NYU School of Law in May 2012. The second Forum will be held at the University of Nottingham this year, and plans are afoot for the third Forum to head to the University of Melbourne in May 2014. Our Forum is inspired by the Yale - Stanford Junior Faculty Forum established over a decade or so ago. The mission of that initiative was to give junior faculty selected through competitive process "experience in how scholarly inquiry is located" and "to enhance the sense of community among legal scholars - particularly among new and veteran professors - by bringing them together for a formal paper submission, selection and presentation program".

Some cases attain ‘landmark’ status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, ‘canonical’, ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC–Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non-controversial result.

Some cases attain “landmark” status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, “canonical,” ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC – Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non controversial result.

The Convention on the Future of Europe is likely to produce a constitutional prototype for Europe. In this article I focus on five hard constitutional choices which Europe will face: the constitutional significance of enlargement; the ‘pure’ constitutional issue, namely the significance of form; the issue of Europe’s social solidarity as a defining identity marker and the question of whether it should, therefore, be constitutionalized thereby taking it out of day–to–day politics; the issue of policing rather than defining the demarcation of competences between the Union and Member States; and, finally, the tricky issue of a human rights policy for Europe.

While the EU is a staunch defender of human rights in both its internal and external policies, it lacks a comprehensive or coherent policy at either level This discrepancy is even less sustainable in 1999 than it was just a few years ago. Monetary union, enlargement, a need to match growing powers with effective human rights scrutiny, and various other developments all necessitate afar more developed human rights policy. Existing institutional arrangements are especially unsatisfactory and the article puts forward a wide range of measures that should be explored in relation to the role of the Council, Commission, Parliament and Court, as well as Member States.

The distinction between law and spirit has had an enduring impact in Western culture, where the law, whatever virtues it may or may not have, however necessary it may be for order or even justice, is perceived as “cold” and in tension with the warmth of love and mercy, oblivious to sorrow and pain. I will shine some light on the edges and interconnections of these distinctions by putting them into the context by contrasting the religious law on mourning with the actual spirit of sorrow.

This essay, the 1997 Jean Monnet Lecture at the London School of Economics, explores the relationship between nationality, democracy and European integration in the context of the debate on European citizenship. Citizenship, an integral part of the vocabulary of statehood, nationality and peoplehood, seems to run into conflict with the very Telos of European integration: a project which aims at a union among the distinct peoples of Europe and not the creation of a new European people. And yet, absence of such a European demos undermines the democratic legitimacy of the Union. This articles explores, inter alia , various models of multiple demoi as a way of addressing this conundrum. It also suggests some ideas for enhancing the mechanics of transnational citizenship.

The essays published in these pages form part of an ongoing symposium. The Institut des Hautes Etudes Internationales and the European Journal of International Law convened a conference on "The Changing Structure of International Law Revisited' in March 1997, bringing together a group of European and American scholars, to discuss the current state of international law in the light of changes that have occurred, both on doctrinal and practiced levels, in recent decades. The symposium identified four areas of investigation: The state between fragmentation and globalization; Is there a hierarchy of norms in international law?; Is international law moving towards criminalization?; Where does the international community stand? Papers on the first theme, with an avant propos by Charles Leben, appeared in EJIL volume 8, number 3. The remaining parts will be published in the next two issues of the journal