New Issue of EJIL (Vol. 33 (2022) No. 2) – Out Next Week

The latest issue of the European Journal of International Law will be published next week. 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. 

Here is the Table of Contents for this new issue:

Editorial

Altneueland – European Law Open published by Cambridge University Press: Welcome; In This Issue; In This Issue – Reviews

 Articles

Hsien-Li Tan, Intergovernmental Yet Dynamically Expansive: Concordance Legalization as an Alternative Regional Trading Arrangement in ASEAN and Beyond

Victor Crochet, Trade Defence Instruments: A New tool for the European Union’s Extractivism

Henning Lahmann, Infecting the Mind: Establishing Responsibility for Transboundary Disinformation

Michael Ramsden, Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights

EJIL: Debate Reply!

Thomas D. Grant and F. Scott Kieff, Behavioural Economics and ISDS Reform: A Response to Maria Laura Marceddu and Pietro Ortolani

 EJIL: Debate!

Nico Krisch, Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance

Roger O’Keefe, Cooperative National Regulation to Secure Transnational Public Goods: A Reply to Nico Krisch

 EJIL: Debate!

Joost Pauwelyn and Krzysztof Pelc, WTO Rulings and the Veil of Anonymity

Armin Steinbach, Are the Fingerprints of WTO Staff on Panel Rulings a Problem? A Reply to Joost Pauwelyn and Krzysztof Pelc

 Roaming Charges: Places with a Soul

Michal Saliternik, Benedictine Monastery in Abu Ghosh

 Critical review of Governance

Ceren Zeynep Pirim, The Legal Effects of the New Presidential System on Turkey’s Treaty-Making Practice?

Aleydis Nissen, Not That Assertive: The EU’s Take on Enforcement of Labour Obligations in Its Free Trade Agreement with South Korea

 Critical Review of Jurisprudence

Mathias Möschel, Jura Novit Curia and the European Court of Human Rights 

Ching-Fu Lin and Yoshiko Naiki, An SPS Dispute Without Science? The Fukushima Case and the Dichotomy of Science/Non-Science Obligations under the SPS Agreement

Review Essay

Jean d’Aspremont, International Law and the Rage against Scienticism. Review of Anne Orford, International Law and the Politics of History

 Book Reviews

Jade Roberts, Review of Mira L. Siegelberg, Statelessness: A Modern History

Jan Klabbers, Review of Jens Steffek, International Organization as Technocratic Utopia

Alexandra Hofer, Review of Gavin Sullivan, The Law of the List: UN Counterterrorism Sanctions and the Politics of Global Security Law

Paolo Palchetti, Review of Hadi Azari, La demande reconventionnelle devant la Cour internationale de Justice

Ingo Venzke, Review of Sigrid Boysen, Die postkoloniale Konstellation: Natürliche Ressourcen und das Völkerrecht der Moderne

 The Last Page

JHHW, Hallelujah – Bathsheba’s Version

Abstracts

Intergovernmental Yet Dynamically Expansive: Concordance Legalization as an Alternative Regional Trading Arrangement in ASEAN and Beyond

Tan Hsien-Li 

The conventional regional trading arrangement landscape holds two primary models. One is the ‘dynamically expansive supranational model’ of the European Union (EU) that progressively enlarges its community beyond the constituent treaty through its evolving laws and institutions. The other is the ‘static intergovernmental model’ of the United States-Mexico-Canada Agreement (USMCA) where members strictly uphold obligations in the original agreement – no more and no less. A certain genre of Asia-Pacific regional trading arrangements (and beyond in the global South) sits uncomfortably within this bifurcated landscape. Sovereignty-centric, they seek a dynamic and ever-expanding community like the EU but, firmly rejecting supranationalism, insist on intergovernmental modalities as seen in the USMCA. Unsurprisingly, they have not been effective. Using post-2007 integration data from the Association of Southeast Asian Nations, this article presents concordance legalization as a new explanatory framework in this landscape, demonstrating how one can regionalize successfully despite being simultaneously agenda expansive and intergovernmentally operational. Concordance legalization’s four-pronged strategy – the constituent treaty explicitly entrenching intergovernmentalism to facilitate dynamic agenda expansion; the dual-step system of primary and secondary laws (with a carefully calibrated use of hard and soft instruments); the organizational hierarchy that expands, implements and exerts intra-regional accountability pressures through numerous meetings and monitoring mechanisms (rather than adjudication) that enforce compliance – has enabled this curious success.

Trade Defence Instruments: A New Tool for the European Union’s Extractivism

Victor Crochet

The European Union (EU) is regularly criticized for using its trade policies to arm-twist other countries into agreeing to supply European factories with raw materials. One area of its trade policy, however, has thus far escaped attention in this regard: trade defence. This should change as the EU increasingly uses trade defence instruments not only to address unfair trade practices but also to seek access to raw materials from other countries. It does so by imposing higher trade defence tariffs on countries that employ policies that ensure raw materials extracted within their territories are processed domestically. This approach is worrisome since, due to the EU’s market size, it may discourage resource-rich countries from developing downstream industries of their own. Furthermore, these countries’ policies are often in line with their international obligations so that the EU is unilaterally infringing on these countries’ sovereignty over their natural resources when targeting these policies. These countries and their exporting producers should thus seize the means at their disposal to put a stop to the EU’s practices.

Infecting the Mind: Establishing Responsibility for Transboundary Disinformation

Henning Lahmann

This article examines the legal issues concerning the establishment of responsibility for an internationally wrongful act in the context of transboundary disinformation. In light of the unprecedented surge of potentially dangerous health disinformation throughout the COVID-19 pandemic, there is growing consensus among academics and states that influence campaigns that utilize false or misleading information may qualify as a violation of international law, amounting to a prohibited coercive intervention, a breach of the target state’s territorial inviolability or independence of state powers or, in extreme cases, even a use of force. However, the aspects of attributing the dissemination of disinformation to a state and of demonstrating a causal nexus between disinformation and effect that are necessary for international responsibility to arise have not been sufficiently addressed in the literature. This article analyses the challenges that contemporary forms of digital disinformation create for proving attribution pursuant to the customary rules of state responsibility as well as the issue of causation. In doing so, it investigates the content of the primary rules for clues pertaining to the necessary causal nexus and assesses different standards of causation employed in international and domestic law.

Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights

Michael Ramsden

Strategic litigation, a form of litigation brought with the goal to stimulate structural change, is a growing practice in international courts. Although there has been increased scholarly attention on these trends, it has yet to consider the impact arising from strategic litigation before the International Court of Justice (ICJ). This article outlines a basic structure to evaluate the impact of ICJ strategic litigation. It does so generally and through a case study into the campaign by the Organisation of Islamic Cooperation (OIC) to restore Rohingya rights and secure accountability for crimes committed against this population through the claim that Myanmar has violated the Genocide Convention. This article identifies the OIC’s campaign goals and how the ICJ case initiated by The Gambia furthered that campaign and evaluates the impact of this case in advancing Rohingya rights.

Behavioural Economics and ISDS Reform: A Response to Marceddu and Ortolani

Thomas D. Grant and F. Scott Kieff

Academic investigators have used behavioural economics, a method developed originally to study consumers and their sentiments towards products, to study matters of public policy. A recent article in the European Journal of International Law – ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ – gives a detailed summary of a series of experiments performed in order to study public sentiment towards investment arbitration. The investigators, Maria Laura Marceddu and Pietro Ortolani, observe that public sentiment improves towards the outcome of a dispute settlement procedure when survey respondents are told that the procedure was a ‘court’ with tenured judges, and it worsens when they are told that it was ‘arbitration’ with temporary appointees. From their observations, Marceddu and Ortolani conclude that an international investment court, such as that which the European Union promotes, is a good idea. We suggest, however, that a further inquiry should investigate in greater detail public understanding of what qualities the individuals who serve as judges or arbitrators ought to display, as distinct from the institutional format in which dispute settlement takes place.

Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance

Nico Krisch

The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centred on territoriality as the guiding principle, has remained stable for a long time. This article traces how, in contrast to the prevailing rhetoric of continuity, core categories of jurisdiction have been transformed in recent decades in such a way as to generate an ‘unbound’ jurisdiction, especially when it comes to the regulation of global business activities. The result is a jurisdictional assemblage – an assemblage in which a multiplicity of states have wide and overlapping jurisdictional claims, creating a situation in which, in practice, a few powerful countries wield the capacity to set and implement the rules. Jurisdiction is thus misunderstood if framed as an issue of horizontal relations among sovereign equals but should rather be regarded as a structure of global governance through which (some) states govern transboundary markets. Using a governance prism, this article argues, can help us to gain a clearer view of the normative challenges raised by the exercise of unbound jurisdiction, and it shifts the focus to the accountability mechanisms required to protect public accountability and self-government in weaker states.

Cooperative National Regulation to Secure Transnational Public Goods: A Reply to Nico Krisch

Roger O’Keefe

There is no doubt, as vividly highlighted in Nico Krisch’s ‘Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance’, that in certain sectors some economically weighty states seek to take advantage of the international law of jurisdiction with a view to determining unilaterally how particular transnational economic activities are conducted. This same law, however, particularly the jurisdictional obligations provided for among states parties by multilateral treaties, is not only capable of serving cooperative national regulation to secure transnational public goods but in respect of a wide range of activities is already doing so. Rather than a fundamental ‘reorientation of jurisdiction towards the solution of common problems and the protection of global interests’, what is needed is political will and diplomatic agreement to use even further the existing law, especially the treaty-based possibilities that it offers, to these ends.

WTO Rulings and the Veil of Anonymity

Joost Pauwelyn and Krzysztof Pelc

Despite a general push for greater transparency, opacity continues to play an important function in international tribunals. The World Trade Organization (WTO) is a case in point. While it has done much to increase its openness, the very design of its dispute settlement body is premised on anonymity in some essential respects. We examine two such instances, each dealing with the authorship of dispute rulings. First, we use text analysis tools to demonstrate that the WTO’s panel reports appear to be largely drafted by WTO Secretariat staff rather than the panellists themselves. This appears especially true for the WTO’s most systemically important disputes. Second, we show that the formal anonymity of dissenting opinions, which is required by the WTO’s rules, is a thin veil. Using the most recent Appellate Body’s dissent for demonstration, we use text analysis to pinpoint its likely author. In both these instances, we argue that anonymity exists by design: it serves to strike a balance between judicial autonomy and political control. Yet, in both settings, due to increased scrutiny and widespread access to text analysis tools, the equilibrium relying on anonymity is likely to be upset, with implications for the institution’s future design. We argue that the ultimate result may be a beneficial one and offer a menu of reform options.

Are the Fingerprints of WTO Staff on Panel Rulings a Problem?: A Reply to Joost Pauwelyn and Krzysztof Pelc

Armin Steinbach

By employing stylometric data analysis, Joost Pauwelyn and Krzysztof Pelc underpin the narrative of a power-mongering World Trade Organization (WTO) Secretariat. As ‘holder of the pen’ in writing WTO rulings, the Secretariat would absorb control over WTO adjudicators and the dispute settlement procedure. This reply disagrees. First, with stylometric analysis informing style rather than substance, this technique does not encrypt the intellectual ownership of WTO rulings, nor does it offer account of the deliberation between bureaucrats and adjudicators. Second, with public power typically deriving legitimacy from both political or judicial accountability as well as rational and de-politicized bureaucracies, an assertive WTO Secretariat under the direction of panellists is normatively desirable. Third, a WTO Secretariat pursuing consistent application of the growing WTO acquis does not impair the members-driven adjudication process.

The Legal Effects of the New Presidential System on Turkey’s Treaty-Making Practice

Ceren Zeynep Pirim

Turkey has always assigned important powers to the legislature, establishing a strong parliamentary tradition. This also applies to the treaty-making process of the state. However, in 2017, the governmental structure was changed from a parliamentary system into a presidential one. This article examines the implications of this transformation on national rules concerning the ratification/termination of treaties, with special emphasis on the withdrawal decision of Turkey from the Istanbul Convention. It is first argued that the new system empowers the president to put on his/her own the Republic under international obligations without assuming political responsibility. It is then argued that the withdrawal decision is unconstitutional, demonstrating that the expansion, without checks and balances, of presidential powers may result in the arbitrary application of the domestic principles of treaty termination. The validity of the decision under the VCLT is also discussed. It is concluded that international law has its limits in intervening in cases of violations of national rules concerning the termination of treaties. It is finally argued that the attribution of all competences concerning the various stages of treaty-making to only one person may have consequences on invalidity claims that Turkey may raise concerning its consent to be bound by treaties.

Not That Assertive: The EU’s Take on Enforcement of Labour Obligations in Its Free Trade Agreement with South Korea

In 2011, the European Union (EU) concluded the first of a ‘new generation’ of free trade agreements that contained a separate chapter with obligations relating to ‘trade and sustainable development’ (TSD) issues. This was the Free Trade Agreement with the Republic of Korea. The EU formally initiated its first TSD complaint, under this agreement, in 2018. This labour complaint came after a non-paper of the European Commission promised ‘more assertive’ use of the soft dispute mechanism for TSD obligations, following years of pressure by various stakeholders. This non-paper remained apologetic about hard sanctions but promised a review in 2023. This article aims to study to what extent the EU delivered upon its promise to use the soft dispute mechanism more assertively during its first TSD proceedings. It finds that the EU was not prepared to act assertively in relation to certain issues (collective bargaining and the right to strike) and certain workers (in the public and export sectors) during the proceedings before the ad hoc Panel of Experts, which ended in 2021. It argues, in particular, that the EU missed a major opportunity to use its bargaining leverage vis-à-vis Korean consumer conglomerates.

Jura Novit Curia and the European Court of Human Rights

Mathias Möschel

This article provides the first in-depth analysis of the European Court of Human Rights’ treatment of the jura novit curia principle. It explains how and why it has been used more frequently over the past 10 years, provides a classification of the case law and critically analyses the existing legal issues and debates that have emerged from the jurisprudence and doctrine. In particular, the 2018 Grand Chamber judgment Radomilja v. Croatia has brought jura novit curia and its potentially controversial role in the interpretation of the European Convention on Human Rights to light. Overall, this article demonstrates that this seemingly anodyne and previously understudied principle reveals conflicting views regarding the functions and purposes of the European Court of Human Rights’ human rights jurisprudence. I argue that the Strasbourg judges should be careful to use the principle consistently and refrain from overusing it, especially in the later stages of proceedings and in order to reduce its case docket.

An SPS Dispute Without Science? The Fukushima Case and the Dichotomy of Science/Non-Science Obligations under the SPS Agreement

Ching-Fu Lin and Yoshiko Naiki

The interface between science and law has been much debated in various fields of international law and the World Trade Organization (WTO) has been one of the main forums. Notably, WTO disputes, such as EC – Hormones and EC – Biotech, have drawn controversies and criticisms over the role of science in WTO law. Korea – Radionuclides – also known as the Fukushima case – calls upon us to reconsider an under-analysed perspective regarding science and law. While the Fukushima accident marked the first massive radionuclide release into the ocean with significant uncertainties and complexities, Korea – Radionuclides did not touch upon any ‘science-based’ obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Thus, it stands out as a unique dispute in the 25 years of the SPS case law. This article unpacks Korea – Radionuclides, challenging and rethinking the assumed dichotomy between science-based and non-science-based obligations under the SPS Agreement. Our critical examination of Korea – Radionuclides suggests that science plays an important role even in the discussions of non-science-based obligations. In contrast to the conventional wisdom of the science/non-science dichotomy, we further argue that the normative integrity and raison d’être of the SPS Agreement in fact rest upon the inextricable nexus and integration between science-based and non-science-based obligations.

International Law and the Rage against Scienticism

Jean d’Aspremont

Anne Orford. International Law and the Politics of History. Cambridge: Cambridge University Press, 2021. Pp. 280 £ 22.99. ISBN: 978110870362

In international legal thought and practice, anything that is related to the real or is grounded in the real is given discursive primacy. This discursive primacy is the manifestation of a common scientistic hierarchy of discourses inherited from Modernity that accord primacy to discourses about the real and grounded in the real. Anne Orford’s International Law and the Politics of History can be read as yet another expression of discontent with such primacy of the real and its scientistic methods. With an emphasis on international lawyers’ engagements with history, Orford specifically takes issue with the use of contextualist and empirical methods in the study of the history of international law. And, yet, as is argued in this review essay, scienticism leaves no way out for those seeking to contest it: Orford’s charge against contextualism and empiricism itself needs to be contextualized and empirically supported.