New Issue of EJIL (Vol. 34 (2023) No. 2) – 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 posts by Sarah Nouwen, Editor-in-Chief of EJIL, and others. The editorials 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: ChatGPT and Exams; On My Way In IV: ‘Aren’t You Exclusive?!’ On the Pros and Cons of Writing Letters of Reference for Only One Candidate in a Hiring Process; In This Issue; In This Issue – Reviews  

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

Kehinde Folake Olaoye, Samuel Kwadwo Boaten Asante and the United Nations Centre on Transnational Corporations (1975-1992) 

Francisco-José Quintana, Small Powers, International Organizations, and the Role of Law: Jorge Castañeda’s Views from Mexico

Roaming Charges: Moments of Dignity

Washington Square, NYC

 Articles

Eliav Lieblich, Wars of Recovery

Yohei Okada, Can Acta Jure Gestionis Be Attributable to the State? A Restrictive Doctrine of State Responsibility

Filip Batselé, Foreign Investors of the World, Unite! The International Association for the Promotion and Protection of Private Foreign Investments (APPI) 1958-1968

Bruno Biazatti, The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC Draft Articles on Crimes against Humanity

Itamar Mann, The New Palestinian Refugees: Between Asylum and Liberation Struggle

Book Reviews

Douglas Guilfoyle, Review of Ian Urbina. The Outlaw Ocean: Crime and Survival in the Last Untamed Frontier

Massimo Lando, Review of Lorenzo Palestini. La Protection des Intérêts Juridiques de l’État Tiers dans le Procès de Délimitation Maritime

Jochen von Bernstorff, Review of Ntina Tzouvala, Capitalism as Civilization: A History of International Law

Miloš Vec, Review of Marcus M. Payk and Kim Christian Priemel (eds). Crafting the International Order: Practitioners and Practices of International Law since c. 1800

Dana Schmalz, Review of Liv Feijen, The Evolution of Humanitarian Protection in European Law and Practice

Raphael Oidtmann, Review of Richard Gaskins. The Congo Trials in the International Criminal Court

The Last Page

Florbela Espanca (Transl. Kay Cosgrove), To Be a Poet

ABSTRACTS

 Kehinde Olaoye, Samuel Kwadwo Boaten Asante and the United Nations Centre on Transnational Corporations (1975-1992) 

This article uses Samuel Kwadwo Boaten Asante’s career at the United Nations Centre on Transnational Corporations (UNCTC) as a prism for examining the place of Third World Approaches to International Law within mainstream international organizations (IO) law. By focusing on his role as chief legal adviser, director and highest-ranking legal civil servant at the UNCTC during the heydays of the New International Economic Order (NIEO), it uncovers a less-examined international institution and the dilemmas faced by the Third World international legal civil servant. By examining Asante’s intellectual history and publications during the operational years of the UNCTC, it identifies three main under-explored typologies of Third World approaches to IO law. It argues that the low visibility of Third World approaches within mainstream IO law is closely linked to the failures of the NIEO movement, the abolition of the UNCTC, which symbolized the non-realization of aspirations to codify the principles of the NIEO through IOs, and minimal engagement by IO law scholars with Third World problems. This article argues that, even though the UNCTC ceased to exist in 1992, it created a lasting legacy through its advisory services, which forms part of IO law history.

Francisco-José Quintana, Small Powers, International Organizations, and the Role of Law: Jorge Castañeda’s Views from Mexico

This article examines the work of Mexican diplomat and jurist Jorge Castañeda as an insight into the trajectory of international legal thought in the semi-periphery on international organizations. It argues that Castañeda adopted a distinct approach to international organizations law that foregrounds power asymmetries. The article considers three interventions made by Castañeda that express this semi-peripheral approach and have lasting relevance. First, it shows how, by focusing on the interests of small powers, Castañeda’s work in the 1950s departed from functionalist optimism and stressed the tension between rule by international organizations and domestic rule, emphasizing the centrality of the reserved domain and drawing lessons for strategic legal engagement for small powers. Second, this article studies how Castañeda’s concern for the cause of small powers shaped his views on regionalism, grounding his critique of Pan-Americanism and his vindication of the United Nations (UN) to attenuate the perils of regionalism. Third, this article retrieves Castañeda’s defence of the UN General Assembly as a platform for international law-making, contextualizes it within the rise of decolonization and explores the implications for his earlier sceptical views about the expansion of UN powers. The article concludes by highlighting the significance of the thought of semi-peripheral jurists for any efforts aimed at re-theorizing international organizations.

Eliav Lieblich, Wars of Recovery

Aggressor state A occupies territory belonging to victim state V. After decades, V decides to go to war to recover its territory, although hostilities have long subsided. Are such ‘wars of recovery’ lawful under international law? Should they be? Recent conflicts have generated a heated scholarly debate on this question, which has ended in stark disagreement. A permissive approach argues that wars of recovery are lawful instances of self-defence, while a restrictive view claims that situations of prolonged occupation are territorial disputes that should be settled peacefully. This article uncovers the theoretical premises that underlie both approaches. As it shows, the dilemma reflects a larger tension within the contemporary international law on the use of force – mainly, between its traditional focus on state rights such as territory and sovereignty and a competing view that seeks to place individual rights at the core of the legal regime. As the article shows, deciding on the question of wars of recovery requires making commitments in four normative spheres: instrumentally, it requires considering questions of international stability, and, non-instrumentally, it requires considering questions of justice as well as possible justifications for killing and sacrifice. These considerations, however, result in instability owing, among other factors, to the fluctuating effects of the passage of time, which follow our normative assumptions about the legal order. Ultimately, the article suggests that those engaging in debate on wars of recovery make explicit their normative assumptions on the ends of jus ad bellum and that, in any case, even if wars of recovery would be deemed legal, they would still remain heavily contestable owing to strong competing reasons against them.

Yohei Okada, Can Acta Jure Gestionis Be Attributable to the State? A Restrictive Doctrine of State Responsibility

The distinction between acta jure imperii and jure gestionis, while playing a pivotal role in the law of state immunity, appears alien to the law of state responsibility. However, recent practice has shown conceptual overlaps between these different areas of international law. The sovereign/commercial dichotomy has informed the attribution of parastatal entities’ conduct to a state under Article 5 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). More precisely, acta jure gestionis have been excluded from the scope of attributable conduct. Against this backdrop, this study investigates whether, and to what extent, the distinction between acta jure imperii and jure gestionis dictates the interpretation and application of Article 5 of ARSIWA. We conclude that the distinction does have relevance in this context, although Article 5 was not designed to preclude the attributability of commercial acts. However, its obscure wording has allowed subsequent practice to overly narrow the scope of attributable conduct. This study, critically analysing a restrictive doctrine of state responsibility, aims to provide a more accurate and desirable conception of the rule and a clear and detailed guideline on when the commercial act of parastatal entities can be attributable to the state.

Filip Batselé, Foreign Investors of the World, Unite! The International Association for the Promotion and Protection of Private Foreign Investments (APPI) 1958-1968

This article studies lobbying efforts by the actors that investment treaties protect – namely, foreign investors. It uses a legal-historical approach to analyse the activities of the International Association for the Promotion and Protection of Private Foreign Investments (Association internationale pour la promotion et la protection des investissements privés en territoires étrangers or APPI), a transnational business interest association that lobbied for better protection of private foreign investment under international law. The article considers the role of this group in lobbying for three multilateral investment treaties (an investment code, investor- state arbitration and investment insurance) during the 1950s and 1960s, using unexplored archival sources. The article makes three substantive contributions to the literature. First, it shows that the key actors involved in APPI were a transnational advocacy network of businessmen and lawyers at multinational companies, mainly in the oil and banking sector. Second, it shows how these two types of actors (businessmen and lawyers) acted symbiotically. The businessmen provided access to policy-makers and introduced company lawyers into the policy-making cycle. The company lawyers provided expertise and specific legal texts with which civil servants could work. Third, it argues that, despite the group members’ common goal to improve foreign investment security, competing individual initiatives and institutionalcompetition, next to state preferences, often impeded more effective lobbying. 

Bruno Biazatti, The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC Draft Articles on Crimes against Humanity

Treaty-making often occurs through the reuse of existing legal solutions. Instead of creating new language, drafters often replicate past treaty wording in the instrument under negotiation. The Draft Articles on Prevention and Punishment of Crimes against Humanity (DACaH), formulated by the International Law Commission (ILC or the Commission), were an example. This article evaluates the ILC’s reliance on past treaty language to produce the DACaH. In addition to assessing some contextual reasons why, and the manner in which, the Commission used such a drafting approach, this article notes that, given its mandate as an expert body subsidiary to the United Nations General Assembly, the ILC may face specific challenges while using this technique. Taking the DACaH as a case study, the article also explores some pragmatic and normative considerations that may motivate or impact the replication of past treaty language in international law-making. In conclusion, the ILC’s reliance on existing treaty wording to craft the DACaH was deeply consequential as it was part of the Commission’s broader goal of placating states via the adoption of an effective, but minimalist and conformist, set of draft articles with greater chances of becoming a widely adhered to treaty.

Itamar Mann, The New Palestinian Refugees: Between Asylum and Liberation Struggle

Contemporary Palestinian asylum seekers raise fundamental questions regarding the relationship between the institution of asylum and struggles for national liberation. Underlying the legal framework that applies to them is an assumption of inverse correlation: the more Palestinians obtain access to individual asylum claims, the less secure are the fundamental Palestinian claims of self-determination and return. But is this trade-off acceptable today? Comparable dilemmas animate other large-scale displacements, but scholars seldom discuss their full implications for international legal theory. Rather than providing a definite answer to the question, this article maps out four major aspects of how individual protection and self-determination are interrelated, or, indeed, bifurcated, in international law. The new Palestinian refugees are important to consider not only because their continued displacement is foreseeable but also because their exceptional plight invites a reconsideration of the political foundations of refugee law. How can policy makers and legal interpreters uphold principles of both individual and collective protection, preventing the two from cutting against each other?