New Issue of EJIL (Vol. 33 (2022) No. 1) Now Published

The latest issue of the European Journal of International Law has now been published. Over the coming days, we will have a series of editorial posts by Joseph Weiler and Sarah Nouwen, Editors-in-Chief of EJIL, plus others. These posts will appear in the Editorial of the new issue. 

Below is the Table of Contents for this new issue. For the benefit of our readers, we now provide hyperlinks to the articles online and include the Abstracts below.

Letters to the Editors

Gender in International Law Syllabi, Cornelia Weiss

Editorial: On My Way Out – Advice to Young Scholars VII: Taking Exams Seriously (Part 1); Vital Statistics; In This Issue; In This Issue – Reviews

Symposium: International Law and Inequalities

Anne van Aaken, Diane Desierto, Isabel Feichtner, Jan Klabbers, Doreen Lustig, Sarah M.H. Nouwen and Joseph H.H. Weiler, Introduction: International Law and Inequalities

Petra Weingerl and Matjaž Tratnik, Climbing the Wall around EU Citizenship: Has the Time Come to Align Third Country Nationals with  Intra-EU Migrants? [free full text article]

Lorenzo Gradoni and Luca Pasquet, Voice Under Domination: Notes on the Making and Significance of the United Nations Declaration on the Rights of Peasants

David Schneiderman, International Investment Law and Discipline for the Indebted

Johan Horst, Inequality, Law and Distribution in Transnational Financial Markets

Donatella Alessandrini, A not so ‘New Dawn’ for International Economic Law and Development: Towards a Social Reproduction Approach to GVCs [open access]

Bernard Hoekman, On Trade Agreements and a Social Reproduction Approach to GVCs: A Reply to Donatella Alessandrini

Dimitri Van Den Meerssche, Virtual Borders – International Law and the Elusive Inequalities of Algorithmic Association [open access]

Shin-yi Peng, The Uneasy Interplay between Digital Inequality and International Economic Law

Amrita Bahri and Daria Boklan, Not Just Sea Turtles, Let’s Protect Women Too: Invoking Public Morality Exception or Negotiating a New Gender Exception in Trade Agreements?

Roaming Charges

Lorenzo Gradoni, Blue Sky Thinking

 Review Essay

Heike Krieger, Of Zombies, Witches and Wizards – Tales of Sovereignty. Review of Don Herzog. Sovereignty RIP

 Book Reviews

Jason Beckett, Review of Vijayashri Sripati. Constitution-Making Under UN Auspices: Fostering Dependency in Sovereign Lands

Taylor St John. Review of Nicolás Perrone. Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules

Miriam Bak McKenna, Review of Thomas Burri and Jamie Trinidad (eds). The International Court of Justice and Decolonisation: New Directions from the Chagos Advisory Opinion

Jörg Kammerhofer, Review of Sondre Torp Helmersen. The Application of Teachings by the International Court of Justice

Callum Musto, Review of Esmé Shirlow, Judging at the Interface: Deference to State Decision-Making Authority in International Adjudication

 Corrigendum

chaa073 Corrigendum: Unreliable Protection: An Experimental Study of Experts’ In Bello Proportionality Decisions

 The Last Page

Charlotte Anna Perkins Gilman, The Anti-Suffragists

Abstracts

Climbing the Wall Encircling EU Citizenship in Respect of Workers: Has the Time Come to Align Third-Country Nationals with Intra-EU Migrants?

Petra Weingerl and Matjaž Tratnik

This article discusses legal migration in the EU, in particular labour migration. It addresses the following question: once migrant workers from non-EU countries have been admitted into the Union, should they be treated like workers from EU countries for purposes of free movement? The EU migration acquis is one of the most politically charged issues covered by the EU Treaties. As EU citizens, nationals of member states enjoy a set of free movement and political rights that can be exercised in other member states in accordance with the principle of non-discrimination on grounds of nationality affirmed in Article 18 TFEU. This principle is arguably not applicable to third-country nationals. Thus, member states are free to accord unequal treatment to third-country nationals as compared to privileged EU immigrants. The pressing question is whether it is desirable to maintain different levels of rights for third-country nationals who have been legally admitted and whose connection to the host member state does not otherwise differ from that of EU citizens who have exercised their mobility rights. To answer that question, this paper examines arguments for and against treating migrant workers from EU countries and non-EU countries equally for purposes of free movement. It will show how these arguments push in different directions depending on whether they concern the political, human, social, cultural, or economic impact of such differential treatment. Our analysis strongly suggests that, on balance, there are convincing reasons for aligning the treatment of long-term resident migrant workers from non-EU countries with that of migrant workers from EU member states.

Voice under Domination: Notes on the Making and Significance of the United Nations Declaration on the Rights of Peasants

Lorenzo Gradoni and Luca Pasquet

In 2018, a transnational coalition led by La Vía Campesina, a 200-million-strong peasants’ organization, managed to have the United Nations General Assembly adopt the Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). The present article examines selected aspects of the law-making process that led to the Declaration, focusing on the stiff resistance encountered by the peasants’ struggle for equality. As the most controversial UN-sponsored human rights instrument ever, the UNDROP intrudes deeply into the field of relations of production and market structures and applies to billions worldwide, including the great majority of the population in least developed countries. Framed as a case study of a voice under domination in international law, the article retrieves what the oppressed were not allowed to say through the language of international human rights law and describes how they responded to this impediment. It argues that UNDROP fits into a law-making tradition rooted in the decolonization process, reinvigorates it, and channels it in new directions. UNDROP combines NIEO-inspired measures and human rights law in a way that seems to achieve much more than the elusive Declaration on the Right to Development. Its non-consensual adoption and radical content also point to a possible alternative to the absorption of the political process concerning the right to development into the a-conflictual logic of the 2030 Agenda for Sustainable Development.

International Investment Law and Discipline for the Indebted

David Schneiderman

The object of the article is to recover the institutional memory of the 1980s debt crisis, when the decolonized world experienced forms of tutelage at the hands of international financial institutions, so as to sketch out continuities and discontinuities with investment law’s present. The paper asks whether damage awards in investment arbitration serve functions analogous to state indebtedness in the 1980s. As during the 1980-1989 debt crisis, states are expected to generate the conditions for investor confidence by, among other things, guaranteeing rights to property and to contract. State indebtedness, in both periods, places stress on government budgets and reduces the living standards of poor people, contributing to heightened inequality within and between states. The article begins with a social-theoretical discussion of how debt serves to curb the possibilities for political action. This is followed by a review of IMF borrowing practices in the 1980s and a discussion of the merits of comparison with contemporary investment law. The narrative frames arising during the 1980s debt crisis that continue to have resonance in the era of investment law are taken up in subsequent sections, focusing on the refrains of mismanagement, the missing development angle, shrunken policy space, and irrelevance of ability to pay. The method is predominantly qualitative, although reference is made to relevant empirical work. In the course of the discussion, the Tethyan Copper v. Pakistan (2019) ruling is periodically revisited as a specimen of how tribunals arrive at damages assessments in investment arbitration. The upshot is that indebtedness in the contemporary world serves functions similar to that in the 1980s: principally to constrain policy capacity in a wide range of sectors. These binding constraints serve the interests of only a small set of actors, while those rendered most vulnerable by these constraints are relegated to the margins.

Inequality, Law and Distribution in Transnational Financial Markets

Johan Horst

Since the financial crisis of 2007–2008, the legal infrastructure of transnational financial markets has attracted much attention in international legal scholarship. Yet, few legal researchers have looked at these markets from a specifically distributional perspective. Drawing on insights from political economy and transnational legal theory, this article addresses the question of how to politicize the distributional choices inherent in the legal infrastructure of transnational financial markets.

A Not So ‘New Dawn’ for International Economic Law and Development: Towards a Social Reproduction Approach to GVCs

Donatella Alessandrini

This article has three aims. First, it takes issue with the argument of international economic institutions according to which states need to adopt deeper trade and investment commitments to sustain value chain trade if they wish to either ‘develop’ or continue being competitive in the global economy. It scrutinizes the evidence on which basis this argument is formulated and finds it to be tenuous at best. It also finds that current data is unable to account for the variety of factors that contribute to so-called ‘social downgrade’ – that is, the deterioration of working and living conditions, including the presence of informal and migrant workers. Second, it draws on feminist political economy to make sense of the co-existence of ‘economic upgrade’ and ‘social downgrade’ in global value chains. Specifically, it adopts a social reproduction lens to shed a light on the increasingly relevant, but invisibilized and/or devalued, role that social reproductive labour and informal labour play in processes of trans/national value creation. Third, it argues that a social reproduction lens can offer valuable insights on international economic agreements and the impact of their provisions on the ability of states and communities to improve working and living conditions. 

On Trade Agreements and a Social Reproduction Approach to GVCs: A Reply to Donatella Alessandrini

Bernard Hoekman

The 15 years following the 2008–2009 global financial crisis witnessed increasing questioning in the global North of the distribution of the gains and costs of an open world economy and the multilateral rules-based trade order. Difficulties in (re-)negotiating trade agreements in the World Trade Organization led states to shift even more of their focus to reciprocal and bilateral trade agreements as these internalize benefits among partners by continuing to maintain trade barriers against non-signatories (mostly emerging economies). There is a vigorous debate across academic disciplines whether such agreements help to increase participation in global value chains (GVCs) by signatory nations and the magnitude and incidence of the associated economic, social and environmental impacts – positive or negative. These are questions calling for rigorous empirical research that assess impacts against appropriate baselines and counterfactuals and investment in data collection, monitoring and evaluation by participating governments. Mischaracterizing both the extent to which trade agreements constrain the ability of states to regulate and reports published by international organizations on GVCs and trade agreements detracts from where the focus arguably should be: providing compelling empirical evidence that GVCs and trade agreements detrimentally affect social reproduction and specific suggestions on how the design of trade agreements should be changed to improve outcomes.

Virtual Borders: International Law and the Elusive Inequalities of Algorithmic Association

Dimitri Van Den Meerssche

The use of algorithmic tools by international public authorities is changing how norms are made and enacted. This seismic shift in global governance has important distributive consequences: the digital turn not only empowers specific corporate actors and forms of expertise but also entails new modes of social sorting based on the placement of people in patterns of data. This article focuses on the emergent inequalities that machine learning and data analytics thereby import in the domain of global governance. In line with the symposium’s theme, I thereby frame the importance of computational decision-making processes from a distributional, and not a procedural, perspective – from a perspective of inequality and not privacy, data protection or transparency. The empirical site for the assessment of these emergent inequalities is the ‘virtual border’. By focusing on the technological tools of data extraction and algorithmic risk assessment that are reshaping practices of border control, the article makes a dual contribution: it reveals the social hierarchies engendered by these data-driven forms of grouping and grading – captured in the novel concept of ‘associative inequality’ – and highlights the difficulty of registering or counteracting this mode of subject-making in existing legal terms. This intervention both traces the particular distributive effects of data-driven governance and signals the challenges it poses to the prospects and emancipatory promises of collectivity, solidarity and equality entertained in modernist ideals of international law. In resisting the logic of algorithmic governance, I suggest, we should strive not for transparency but for opacity, not inclusion but incomparability, not privacy but open-ended and defiant commonality.

The Uneasy Interplay between Digital Inequality and International Economic Law

Shin-yi Peng

This article addresses the questions of what role international economic law has played in the story of digital inequality’s emergence and evolution and how international economic law can reduce digital inequality instead of enhancing it. The first part of this study illustrates the uneasy interplay between digital inequality and international economic law. At the network layer, the economic benefit of the General Agreement on Trade in Services’ Mode 3 (foreign investment) market access commitments in the telecommunications sector has never been realized in many developing countries and least developed countries (LDCs). There is a missing link between the consequences of trade liberalization and broadband investment. At the application layer, today’s platformization of services was an ‘unforeseen development’ at the time the World Trade Organization (WTO) was established. Through the pro-liberalization of WTO jurisprudence, members’ decades-old Mode 1 (cross-border) market access commitments have played more than a marginal legal role in global datafication. The second part of this study discusses how international economic law can confront and potentially redress that inequality. In the context of trade and development, it remains to be seen how the WTO members can find the common ground needed to balance digital trade liberalization and development needs. Unless infrastructure concerns from developing countries and LDCs are addressed, the ongoing WTO e-commerce trade deal may end up being labelled the Digital ‘Haves’ Trade Agreement. In the context of trade and competition, the increasing inequality in digital platforms calls for a set of international competition rules to appropriately address market power in the data sector. By imposing cross-border disciplines for competition policy and thus curbing the power of big digital platforms, the proposed WTO Data Reference Paper may well be an effective instrument to address the second dimension of ‘digital inequality’ – data colonization.

Not Just Sea Turtles, Let’s Protect Women Too: Invoking Public Morality Exception or Negotiating a New Gender Exception in Trade Agreements?

Amrita Bahri and Daria Boklan

The most common provisions we find in almost all multilateral, regional and bilateral trade agreements are the exception clauses that allow countries to protect public morals, humans, animals or plant health and life and conserve exhaustible natural resources. If countries can allow trade-restrictive measures that aim to protect these non-economic interests, is it possible to negotiate a specific exception to justify measures that are aimed at protecting women’s economic interests as well? Is the removal of barriers that impede women’s participation in trade any less important than the conservation of exhaustible natural resources such as sea turtles or dolphins? In that context, this article prepares a case for the inclusion of a specific exception that can allow countries to leverage women’s economic empowerment through international trade agreements. This is done after carrying out an objective assessment of whether a respondent could seek protection under the existing public morality exception to justify a measure that is taken to protect women’s economic interests.

Of Zombies, Witches and Wizards – Tales of Sovereignty

Heike Krieger

Don Herzog. Sovereignty RIP. New Haven and London: Yale University Press, 2020. Pp. 299. $US 40.00. ISBN: 9780300247725.

Don Herzog’s book Sovereignty RIP offers a tour d’horizon of one strand of sovereignty’s conceptual history and its changing meanings over time. It culminates in a ferocious call to bury the notion of sovereignty and replace it with concepts such as jurisdiction, authority and state. Based on insights from conceptual history, in particular about basic concepts, the review essay criticizes Herzog’s approach. It questions whether one can convincingly denounce the concept of sovereignty by relying predominantly on episodes from Anglo-American history as Herzog does. Instead, the essay tells two alternative stories in order to first argue that ignoring other narratives risks misunderstanding and misinterpreting the current re-rise of sovereignty-related discourses and that, second, sovereignty remains an important tool to understand how both the constitutional state and multilevel governance work. Eventually it would be more pernicious to discard the concept of sovereignty instead of engaging with it and confronting its diverging conceptions.