In This Issue

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Our Articles section in this issue opens with a contribution by Hsien-Li Tan, who proposes that the post-2007 ASEAN presents a new regionalization model to the regional trading arrangement landscape. Introducing the concept ‘concordance legalization’, Tan argues that this model allows sovereignty-centric states to dynamically expand their regionalization agenda without supranationalism. In the next article, Victor Crochet argues that the European Union (EU) is using trade defence instruments as extractivist policy tools to ensure its industries’ access to raw materials in resource-rich developing countries and that such practice infringes upon developing countries’ sovereignty over their natural resources and may hamper the development of downstream industries in these countries. Thereafter, Henning Lahmann addresses the issue of establishing state responsibility for transboundary disinformation. Focusing on the questions of attribution and causation, Lahmann analyses the distinct challenges they face in the context of transboundary disinformation and how they may be tackled by various doctrinal constructs. Concluding this section, Michael Ramsden develops a structure for evaluating the impact of strategic litigation before the International Court of Justice (ICJ) through a study of The Gambia v. Myanmar case. Identifying the goals of the parties and the foreseen and unforeseen effects of the litigation, Ramsden argues that using the ICJ as a site for strategic litigation has both prospects and perils.

This issue’s EJIL: Debate! section begins with a Reply by Thomas Grant and F. Scott Kieff to Maria Laura Marceddu and Pietro Ortolani’s article, ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’, published in EJIL 31:2. Whereas Marceddu and Ortolani had interpreted their empirical data to suggest that public criticism of investment arbitration depends on the institutional design of the bodies adjudicating such disputes, Grant and Kieff offer an alternative hypothesis: the attributes of the people who decide may be more relevant than the institutional format.

This section continues with two debates. In the first debate, Nico Krisch asserts that the international law of jurisdiction has undergone a fundamental transformation and has become unbound and assembled. He argues that, particularly in the economic realm, the practice of jurisdiction should be seen as a hierarchical structure of global governance through which a few powerful states govern transboundary markets. In his Reply, Roger O’Keefe questions Krisch’s account of the international law of jurisdiction and argues that international law can and does serve cooperative national regulation to secure transnational public goods and that it is political will, not international law itself, that stands in the way of harnessing this progressive potential.

In the second debate, Joost Pauwelyn and Krzysztokf Pelc use text-analysis tools to trace the authorship of World Trade Organization (WTO) rulings: it is the Secretariat staff who ‘hold the pen’, and it is also possible to pinpoint the authors of anonymous dissenting opinions. They argue that as anonymity serves to strike a balance between judicial autonomy and political control, this balance may be upset by the widespread access to text analysis tools, creating significant implications for the WTO’s future design. Armin Steinbach contests the method used by Pauwelyn and Pelc, arguing that stylometric analysis cannot conclusively inform on the authorship of the rulings. And even if it could, Steinbach argues, the findings are not necessarily problematic: an assertive and ‘rule of law’-driven WTO Secretariat can enhance the legitimacy of WTO rulings and member states’ interests.   

Our Roaming Charges image, by Michal Saliternik, takes us to a small haven of peace and beauty in the Benedictine Monastery of Abu Ghosh, an Arab-Israeli town near Jerusalem.

In Critical Review of Governance, Ceren Zeynep Pirim examines the changes in Turkish law regarding the ratification and termination of international treaties following the establishment of a presidential system in 2017 and highlights their constitutional and international legal effects. Aleydis Nissen discusses the EU’s first trade and sustainable development complaint under its Free Trade Agreement with Korea and argues that the EU has not been ‘more assertive’, as it had promised, towards the enforcement of labour and environmental issues.

In Critical Review of Jurisprudence, Mathias Möschel examines the use of the jura novit curia principle by the European Court of Human Rights and argues that the Court should use this principle carefully and consistently, especially in the later stages of proceedings and when used to reduce the Court’s caseload. For their part, Ching-Fu Lin and Yoshiko Naiki discuss the Korea-Radionuclides case to offer a critique on the science/non-science dichotomy in the case law on the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures. 

In The Last Page we publish a poem that rewrites Leonard Cohen’s justly celebrated Hallelujah. In this rewrite, the poem gives voice to Bathsheba, and the dark sides of Cohen’s ‘baffled’ King David ‘whose faith was strong’ come to light. For the benefit of our readers, we print below the poem the Biblical text from the book of Samuel in which this story of sexual violence and murder is starkly recounted.

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