New Issue of EJIL (Vol. 34 (2023) No. 1) – Out Soon

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

Here is the Table of Contents for this new issue, as well as the Abstracts:

Editorial:

Israel: Cry, the Beloved Country; Vital Statistics; Book Review EditorS; In This Issue; In This Issue – Reviews  

EJIL Foreword

Antony Anghie, Rethinking International Law: A TWAIL Retrospective

Articles

Anne Saab, Discourses of Fear on Climate Change in International Human Rights Law

Year-Long Symposium:  Re-Theorizing International Organizations Law: Reconsiderations, Hidden Gems, and New Perspectives

Devika Hovell, Jan Klabbers and Guy Fiti Sinclair, Hidden Gems in International Organizations Law – A Brief Introduction 

Dimitri Van Den Meerssche, Deformalizing International Organizations Law – The Risk Appetite of Anne-Marie Leroy

Fernando Lusa Bordin, The Quest for International Legal Status: On Finn Seyersted and the Challenges of Theorizing International Organizations Law 

Roaming Charges

Places with a Soul: Fashion on a Wall

 A Fresh Look at Old Cases

Sarah Lattanzi, A Fresh Look at the 2005 Commission v. United Kingdom Judgment in Light of the Euratom Treaty’s Drafting History

ESIL Corner

Seline Trevisanut, Machiko Kanetake and Cedric Ryngaert, The In/Ex-clusiveness of International Law: Some Remarks on the 17th Annual Conference of the European Society of International Law by the Local Organizers

Tendayi Achiume, The In- or Ex-clusiveness of International Law

Namira Negm, The In/Ex-clusivess of International Law: Some Remarks from the Concluding Panel of the 17th Annual Conference of the European Society of International Law

Alfred Soons, Remarks at the Welcome Reception of the 17th ESIL Annual Conference

Review Essays

Mavluda Sattorova, Greed and Grievance: Corporations, States and International Investment Law in Times of Conflict. Review of Daria Davitti, Investment and Human Rights in Armed Conflict: Charting an Elusive Intersection; Jure Zrilic, The Protection of Foreign Investment in Times of Armed Conflict; Katia Fach Gómez, Anastasios Gourgourinis, and Catharine Titi (eds), International Investment Law and the Law of Armed Conflict

Cait Storr, ‘That Little Book’. Review of Robert Yewdall Jennings, The Acquisition of Territory in International Law

Book Reviews

Matthias Goldmann. Review of Bénédicte Savoy, Afrikas Kampf um seine Kunst. Geschichte einer postkolonialen Niederlage [Africa’s fight for its cultural heritage. History of a postcolonial defeat]

The Last Page

Rabindranath Tagore, Freedom

 ABSTRACTS

Antony Anghie, Rethinking International Law: A TWAIL Retrospective

This EJIL Foreword is a personal retrospective of the Third World Approaches to International Law (TWAIL) movement. It provides an account of the origins of TWAIL and the political and intellectual context in which it emerged during the 1990s. It outlines some of the key themes and concerns of TWAIL – including ‘colonial continuities’, ‘capitalism, imperialism and political economy’, and ‘TWAIL and History’. It argues that the distinction between the ‘First’ and ‘Third’ Worlds continues to be relevant by examining the operation of this distinction in various fields of international law, such as the use of force, international migration law and human rights. The Foreword then outlines two of the author’s current research projects on themes that have been of major interest to TWAIL scholars: first, human rights and their relationship to imperialism; and second, race and reparations. The Foreword concludes by arguing that ‘Third World Approaches to International Law’ are relevant, not simply for the ‘third world’, but for the entire globe; it urges us to consider TWAIL as a cosmopolitan project.

Anne Saab, Discourses of Fear on Climate Change in International Human Rights Law

Discourses of fear on climate change are pervasive. International human rights law frequently refers to climate change as one of the most serious threats to human rights, and this language of threat reveals a discourse of fear. Fearful representations of climate change are justified by scientific data and can be effective in drawing attention to the issue and incentivizing necessary action. However, psychologists and communications experts have demonstrated that fear can also lead to disengagement, ‘climate change fatigue’ and active opposition to climate change policies. By invoking a discourse of fear on climate change, human rights actors are not only reflecting accurate climate science but also engaging in emotional rhetoric. The discourse of fear that presents climate change itself as the main threat to human rights, moreover, contributes to framing climate change primarily as a physical and scientific problem and obscures other important dimensions of climate change. Those individuals engaging with international human rights law must acknowledge the rhetorical and emotive power of the language they speak and engage more seriously with the literature on discourses of fear and their effects on a broad general audience. Only then can we truly work towards effective action on climate change, supported by international law.

Dimitri Van Den Meerssche, Deformalizing International Organizations Law – The Risk Appetite of Anne-Marie Leroy

Taking on this Symposium’s invitation to rethink international organizations law by focusing on scholars and practitioners outside the mainstream, this article explores and evaluates the legacy of Anne-Marie Leroy, the World Bank General Counsel from 2009 to 2016. In her attempt to trade the formal, rigid language of law for the deformalized routine of risk management – described as a ‘paradigm shift’ from ‘rules to principles’ – Leroy could be portrayed as an antipode to those who developed or nurtured the discipline of international organizations law. Yet it is precisely by focusing on figures working outside (and against) the diagrams of the discipline that we can gain a critical perspective on the evolving life of law in international institutions. The article specifically focuses on how Leroy’s paradigm shift sought to bypass, manage, and overcome problems of operational expansion and institutional accountability to the outside world – perhaps the two frontiers where the conceptual normative confidence of mainstream, functionalist approaches most manifestly hit their limits. In both domains, the article shows, the principled (occasionally prohibitive) posture of liberal legalism instilled by some of Leroy’s predecessors had to be traded for an attitude of ‘agility’ and enhanced ‘risk appetite’. This article traces these changes in the professional sensibility and material practice of international law(yering) and critically evaluates the ‘new normative architecture’ of ‘risk’ that underpins it. It is by dwelling in this disjunction between familiar doctrinal dilemmas and mundane material practices of lawyering – a space teeming with unexpected rules and routines – that a critical reinvigoration, reorientation, and re-theorization of international organizations law can emerge.

Fernando Lusa Bordin, The Quest for International Legal Status: On Finn Seyersted and the Challenges of Theorizing International Organizations Law 

After so many decades since the emergence of international organizations, the question of their international legal status – the terms on which they participate in the international legal system – remains the subject of debate. Among all the scholars that have contributed to this debate, Finn Seyersted stands out for having offered a forward-looking, sophisticated and uncompromising account of what international organizations are under general international law and of what international rights, obligations and capacities they consequently possess. Yet Seyersted is perceived as a left-field scholar with a bee in his bonnet. His work is often name-checked but rarely engaged with properly. This article highlights Seyersted’s invaluable contribution to the theory of international organizations, which has the merit, among others, of having sensed the direction in which international practice was going. It also ponders how Seyersted’s relative lack of success in becoming a more influential scholar can be viewed as a cautionary tale, for there are empirical, conceptual and normative challenges in the quest for international legal status that his work was not able to meet.

Sarah Lattanzi, A Fresh Look at the 2005 Commission v. United Kingdom Judgment in Light of the Euratom Treaty’s Drafting History

This article provides a new example of a ‘fresh look at an old case’. It examines the 2005 Commission v. United Kingdom case in light of a study conducted using the Historical Archives of the European Union. The historical holdings contain many travaux­préparatoires of the Treaty Establishing the European Atomic Community. These documents can be very useful for reconstructing the drafting history of the founding treaties and developing a historical interpretation of their provisions. In Commission v. United Kingdom, the same parties that participated in the negotiation process relied on these travaux préparatoires, and the Court of Justice of the European Union itself engaged in a historical interpretation of the provisions at stake. Taking this case as an example, this article delves into questions pertaining to the use of travaux préparatoires as a means of interpretation and the respective role of judge and historians in performing the task of shedding light on the original will of the contracting parties and on the historical context in which this will was shaped.

Mavluda Sattorova, Greed and Grievance: Corporations, States and International Investment Law in Times of Conflict. Review of Daria Davitti, Investment and Human Rights in Armed Conflict: Charting an Elusive Intersection; Jure Zrilic, The Protection of Foreign Investment in Times of Armed Conflict; Katia Fach Gómez, Anastasios Gourgourinis, and Catharine Titi (eds), International Investment Law and the Law of Armed Conflict

For those on the ground, conflict brings about devastation and displacement. For foreign investors who frequently seek commercial opportunities far and wide, conflict is not just a fellow traveller but also a crucial element of the environment in which international investment law was conceived and later took shape. This review essay seeks to uncover some of the fundamental and overarching themes underpinning the relationships between foreign corporations, states and local communities in times of conflict. By focusing on the distinct roles played by the corporation in situations of conflict – as a victim, contributor, beneficiary, perpetrator and accomplice – the essay aims to cast light on international law’s troublesome origins, biases and complicities and to highlight a growing concern over the enduring lack of effective avenues for corporate accountability. 

Cait Storr, ‘That Little Book’. Review of Robert Yewdall Jennings, The Acquisition of Territory in International Law

The Acquisition of Territory in International Law has been an indispensable work in the field for 60 years. It remains so, if for shifting reasons. Robert Jennings’ treatment of the applicable law is so succinct, and his bald statements of fact as to the nature of international law so unapologetic, that the text will invariably reward close re-reading by international lawyers of all persuasions. Acquisition of Territory goes far beyond its apparent brief of summarizing the relevant lex lata and offering an expert opinion on key issues of lex ferenda. Viewed from the right light, the work is a prism that refracts the world of early 1960s international law. Jennings deftly sidesteps and postpones fundamental questions of anti-colonial justice that some would have expected to be addressed in a lecture series on the acquisition of territory given in December 1962. The reading down of global anti-colonial movements to a ‘policy question’ beyond the strict concerns of jurists says much of the culture of British international law in the early 1960s. Jennings uses law to relegate calls for colonizing powers to be held to account to some future time, in some differently constituted international system. Amongst his kind, then and now, he is hardly alone.