In This Issue

The last issue of 2021 opens with an article by Fuad Zarbiyev, who undertakes a critical examination of the privileged status that the judicial representation of international law enjoys in mainstream international legal discourse. Zarbiyev argues that this status is neither obvious nor unobjectionable, and points to its main ramifications. In the next article, Katie Johnston explains how the nature and context of an alleged customary rule affect the manner in which the International Court of Justice applies the opinio juris and state practice tests to determine whether the alleged rule actually exists. Thereafter, Jie (Jeanne) Huang suggests ways to strike a balance between the international law-based requirement to increase transparency in investment arbitration and the domestic law-based requirement to protect personal data. As Huang notes, such balancing is likely to become particularly acute as international arbitration increasingly relies on virtual hearings. Sherzod Shadikhodjaev addresses another challenge associated with online economic activity: namely, ensuring that the regulation of digital trade would abide by the principle of technological neutrality, which requires regulators to treat all technologies equally. Questions related to technological neutrality and data protection are also discussed by Dafna Dror-Shpoliansky and Yuval Shany, who problematize the dominant view according to which the same rights that people have offline should also be protected online. Asserting that the ‘normative equivalency’ paradigm does not ensure sufficient protection for human rights in cyberspace, the authors support the recognition of new digital human rights, such as the right to internet access and the right not to be subjected to automated decisions.

Our Roaming Charges image by a young Afghan woman, Farhat Chiri, complements the Last Page poem by a medieval female poet, Rabia Balkhi, from Balkhi (present-day Afghanistan). Together they invite reflection on the importance and influence of the poet in today’s Afghanistan. An earlier section of this Editorial tells the fascinating and tragic story of Rabia Balkhi.  

The next section launches EJIL’s new Legal/Illegal series, which features short articles assessing the international legality of current events. The idea is to create a space for timely doctrinal deliberations, which are more in-depth than the EJIL: Talk! framework can cater for. Our first Legal/Illegal exchange addresses the question whether the use of force by Azerbaijan in the Second Nagorno-Karabakh War was lawful or, more generally, whether the use of force by a state to recover a territory that has been occupied for a long time can be lawful. Tom Ruys and Felipe Rodríguez Silvestre reply in the negative, reasoning that the use of force in such circumstances cannot be considered as self-defence because it does not satisfy the immediacy requirement. In contrast, Dapo Akande and Antonios Tzanakopoulos assert that where an occupation follows from an unlawful armed attack, it should be seen as a continuing armed attack, which accords to the attacked state an ongoing right to self-defence.

In Critical Review of Governance, Jinyuan Su examines the legality of establishing offshore air defence identification zones outside a state’s national airspace. Su finds that under customary international law, passive identification (for instance, through radar detention) is permissible, whereas voluntary identification (for instance, through the submission of flight plans) is at best tolerated.

EJIL has had a special relationship with the European Society of International Law since the planning stages of the Society’s creation. ESIL’s founding meeting was convened in 2001 on the initiative of the Editors of the European Journal of International Law in conjunction with Professor Hanspeter Neuhold of the University of Vienna. Since then, there have been several valuable collaborations between the Society and the Journal. We aim to demonstrate that special relationship in the Journal by dedicating some pages to highlights of ESIL conferences, as selected by the ESIL Board. This issue therefore contains a section focused on the Society’s 16th annual meeting on ‘Changes in International Lawmaking: Actors, Processes, Impact’, convened in Stockholm in September 2021, despite all the challenges of a pandemic. The section begins with the speech with which the Convenor of the Organizing Committee, Pål Wrange, opened the conference. It continues with an edited version of the – online – keynote conversation between Martti Koskenniemi and Sarah Nouwen on ‘The Politics of Global Lawmaking’. The section closes with two pieces reflecting on the conference, written by Romain Le Boeuf and Sotirios-Ioannis Lekkas.

The last section in this issue is a Transatlantic Symposium on The Restatement (Fourth). Situated between articles and book reviews, the Symposium illustrates EJIL’s commitment to taking books seriously. And the 2018 Restatement on the Foreign Relations Law of the US is a book that merits serious discussion. The Symposium is the written record of a literal – albeit online – discussion we organized in October 2020 between, on the one hand, US scholars intimately familiar with the Restatement, indeed many of its authors, and on the other hand, Europe-based scholars who are intimately familiar with the issue areas covered by the Restatement: treaties, jurisdiction and immunities.

One of the aims of this Symposium was to reflect on the institution of the American Restatement – not exactly in the form of an ‘everything you wanted to know and did not dare to ask’ but, to the best of our abilities, an ‘everything important you wanted to know’ or at least ‘some of the most important things you wanted to know’ about the Restatement. In pursuing that objective in this transatlantic exercise, we were immensely helped by the participation of the actual reporters of the Restatement (Fourth), who were open and receptive to answering some searching and delicate questions.

After an introduction to its key concepts and structure, the Symposium opens with a literal Q&A between the Symposium convenors and one of the project’s two coordinating reporters, Paul Stephan. We discuss the selection of the reporters, the writing process, the Restatement’s intended audience and its relationship with the Restatement (Third). In the two following contributions, the phenomenon of the US Restatement is commented on and critiqued by Hélène Ruiz-Fabri and Anne Peters. Paul Stephan responds to these two articles. The Symposium then turns to a discussion of the substantive law as treated in the Restatement (Fourth). Alina Miron and Paolo Palchetti argue that in the area of the law of treaties, the Restatement (Fourth) is more inward-looking than the Restatement (Third) was – a view that reporters Curtis Bradley and Edward Swaine dispute. Cédric Ryngaert, too, focuses on the differences between the Restatement (Third) and (Fourth), finding the latter to have adopted a ‘parochial’ approach to the law of jurisdiction. In his response, William Dodge differentiates between ‘parochial’ and ‘modest’ approaches to the customary international law of jurisdiction, and defends the virtues of modesty. The Symposium concludes with a substantive discussion between Roger O’Keefe and reporters David Stewart and Ingrid Wuerth on the Restatement’s treatment of the law of immunities.

We are grateful to all the Symposium contributors: to commentators for engaging, seriously and respectfully, with a work of significance, and to the Restatement authors for their openness in discussing their work.