In This Issue

The article section of this issue opens with a contribution by Maria Laura Marceddu and Pietro Ortolani, who pose the question: What is wrong with investment arbitration? That there is something wrong with investment arbitration is now well-rehearsed; less well understood is what explains the public aversion. Marceddu and Ortolani offer an empirically grounded answer. Also utilizing experimental methods, Daniel Statman, Raanan Sulitzeanu-Kenan, Micha Mandel, Michael Skerker and Steven De Wijze shift the focus to international humanitarian law and scrutinize the reliance on the proportionality principle in bello. While they find that military and academic experts have a sensibility towards this principle and a thorough, abstract understanding of it, this by no means ensures a reliable protection qua this fundamental principle due to insufficient inter-expert judgment convergence. Jasenka Ferizović closes this section with her analysis of the ‘dark side’ of women in warfare. While women’s role as victims or their positive impact as peace activists or healthcare providers has received much attention, Ferizović sheds light on female perpetrators of war crimes.

The next section features a Symposium on theorizing international organizations law convened by Jan Klabbers and Guy Fiti Sinclair. Following the convenors’ Introduction on conceptualizing international organizations law, Jochen von Bernstorff begins this in-depth engagement with the intellectual history of international organizations law by depicting the legal concept of international organizations offered by the Vienna School, most notably Hans Kelsen and Josef L. Kunz. Guy Fiti Sinclair examines C. Wilfred Jenks’ foundational work on international organizations and brings to light his thoughts on possible future developments of international organizations, several of which have not yet materialized. Evelyne Lagrange focuses on the fundamental contributions to functionalism made by Paul Reuter, whose significance is overshadowed by the prominence of the two ‘founding fathers’ of functionalism, Jean Monnet and Robert Schuman. Jan Klabbers engages with the work of one of the leading post-war functionalists, H. G. Schermers, analysing the (irreconcilable) dilemma he faced when international organizations became responsible for human rights violations. Ian Johnstone portrays the legacy of Louis Sohn, picturing him as a ‘pragmatic idealist’. Umut Özsu closes the symposium by revisiting Georges Abi-Saab’s work on Dag Hammarskjöld and the Congo Crisis, showing his understanding of the ways in which international law can be developed in and through international organizations. As the convenors of the symposium note in their Introduction, the scholars studied in this symposium are diverse in their approaches, but less so in their own backgrounds, let alone gender. But neither for the convenors nor for EJIL is this the end of the story. Inspired by Felice Morgenstern’s admonition that it is inertia rather than active resistance that stands in the way of change, the convenors have taken up the challenge to continue the exploration of important figures in International Organizations law, including scholars who have not received the attention they deserve. Watch this space for announcements on this new initiative.

In stark and sober black and white tones, our Roaming Charges image in this issue reflects a sense of isolation and separateness experienced the world over during the COVID-19 pandemic.

In the next section, we publish a Focus on human rights and science. We feature two articles that explore contemporary implications of the human right to science embedded in the International Covenant on Economic, Social and Cultural Rights. The first article, by Anna-Maria Hubert, asserts that in view of the nexus between environmental protection and scientific knowledge, the human right to science can play an important role in enhancing the effectiveness as well as the democratic legitimacy of international environmental law. In her Reply, Jacqueline Peel questions the ability of such a human rights-based approach to bridge the gap between science and democracy in contested international environmental legal decision-making processes. The article by Rumiana Yotova and Bartha M. Knoppers discusses the role of the human right to science in the regulation and sharing of big genomic data. This article, too, acknowledges the limitations of a rights-based approach, inter alia in view of the progressive, discretionary nature of the right to science. 

In our EJIL: Debate! section, Andreas von Staden and Andreas Ullmann reply to the article by Vera Shikhelman, ‘Implementing Decisions of Human Rights Institutions’, published in our vol. 30:3 issue, and Jochen von Bernstorff, engages with the article by Eyal Benvenisti and Doreen Lustig, ‘Monopolizing War’, published in our 31:1 issue, asking whether International Humanitarian Law is a sham. Benvenisti and Lustig reply with a Rejoinder.

Next, we continue our series ‘Changing the Guards’ with a contribution by Daniel Sarmiento, who reflects on the EU Presidency of Jean-Claude Juncker and provides a study in character.

We have a special review section in this issue: complementing the Symposium on Theorizing International Organizations Law, a focus section features two review essays and three book reviews covering recent scholarship on international institutional law. We begin with a review essay by Jan Klabbers, who discusses the most recent member of the ‘Oppenheim family’ (the volume on UN law prepared under the direction of Dame Rosalyn Higgins) and reflects on scholarship in ‘the days of wines and roses’. Christiane Ahlborn’s essay offers an in-depth engagement with Nikolaos Voulgaris’ work on the allocation of responsibility between international organizations and states and zooms in on the concept of ‘indirect responsibility’.

The three book reviews comment on, respectively, a crucial conceptual tool of international institutional law, the legal regime governing one of its significant sub-areas, and a new textbook in French. In order of appearance: Samantha Besson is impressed with Fernando Bordin’s Analogy between States and International Organizations and identifies three themes for further discussion. Lorenzo Gasbarri finds much to agree with in Gerhard Ulrich’s Law of the International Civil Service, but struggles with the author’s ‘legal-dogmatic approach’. Finally, Fréderic Dopagne enjoys the engaging, ‘militant’ style of Eric David’s Droit des organisations internationales. Taken together, the five reviews offer a panorama of contemporary international institutional law and can serve those wishing to be pointed to key issues and challenges.

Our choice of poetry for The Last Page is eclectic. But we are particularly pleased when we are offered poetry written by international lawyers. Those of you who enjoy taking a break from law and appreciate The Last Page will recall the poems we have published by Gregory Shaffer and Richard Falk, to give but two examples. Judge Epitácio Pessoa from Brazil served on the Permanent Court of International Justice from 1924–1930. Two of our readers from Brazil brought to our attention poems that Judge Pessoa wrote during that period, many of which take a light-hearted, almost exasperated view of the life of a sitting judge at the Hague. It is our pleasure to offer a selection of his poems on The Last Page in this issue for your enjoyment and a quick giggle.