New Issue of EJIL (Vol. 34 (2023) No. 4) – Out Next Week

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The latest issue of the European Journal of International Law will be published next week.  Over the coming days, we will publish a number of posts outlining the contents of this issue as well, as the editorials from this issue. 

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

Editorial

In This Issue; In This Issue – Reviews; EJIL Roll of Honour; 2023 EJIL Peer Reviewer Prize; 10 Good Reads 2023

Afterword:  Antony Anghie and His Critics

Ratna Kapur, TWAIL and Alternative Visions: ‘Talking about a Revolution’: Afterword to the Foreword by Antony Anghie

Arnulf Becker Lorca, After TWAIL’s Success, What Next?  Afterword to the Foreword by Antony Anghie

Andreas von Arnauld, The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie

Articles

Joris Larik, Imitation as Flattery: The UK’s Trade Continuity Agreements and the EU’s Normative Foreign Policy

Hanna Eklund, Peoples, Inhabitants and Workers: Colonialism in the Treaty of Rome 

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

Yifeng Chen, International Institutions as Forms and Fora: Rao Geping and the Law of International Organizations in China

Kristina Daugirdas, Rosalyn Higgins on International Organizations and International Law: The Value and Limits of a Policy-Oriented Approach

Devika Hovell, Jan Klabbers, Guy Fiti Sinclair, Re-theorizing International Organizations Law: An Epilogue

Roaming Charges

Michelle Burgis-Kasthala and Marya al-Hindi, Spot the Difference in Downtown Beirut: A Postscript to ‘Time for Justice?’

Critical Review of Governance

Anna Sophia Tiedeke and Martin Fertmann, A Love Triangle? Mapping Interactions between International Human Rights Institutions, Meta and Its Oversight Board

André Nollkaemper, International Law and the Agony of Animals in Industrial Meat Production

Armin Steinbach, The EU’s Turn to ‘Strategic Autonomy’: Leeway for Policy Action and Points of Conflict

 Legal/Illegal

Anton Moiseienko, Legal: The Freezing of the Russian Central Bank’s Assets

Ron van der Horst, Illegal, Unless: Freezing the Assets of Russia’s Central Bank

 Book Reviews

Sigrid Boysen, Review of Marie-Catherine Petersmann, When Environmental Protection and Human Rights Collide: The Politics of Conflict Management by Regional Courts

Prisca Feihle, Review of Alice Ollino. Due Diligence Obligations in International Law

Sanna S. Lehtinen, Review of Emily Jones. Feminist Theory and International Law: Posthuman Perspectives

Christian J. Tams, Review of Tommaso Soave, The Everyday Makers of International Law. From Great Halls to Back Rooms

The Last Page

Ricardo Reis (Fernando Pessoa), Quanta tristeza e amargura afoga

 ABSTRACTS

Ratna Kapur, TWAIL and Alternative Visions: ‘Talking about a Revolution’: Afterword to the Foreword by Antony Anghie

This Afterward is in response to an invitation by EJIL to engage with Tony Anghie’s Foreword in the same journal entitled ‘Rethinking International Law: A TWAIL Retrospective’. I join in conversation with Anghie to further expand and amplify the redemptive potential of TWAIL, through a focus on human rights. I tease out and amplify a robust account of what constitutes an ‘alternative vision’ found in TWAIL as an epistemological inquiry that reflects a yearning to break free of the Eurocentric discourses that continue to structure human rights and the human subject. It also draws attention to the transformative and revolutionary vision of the project available in the aftermath of the critiques of traditional international law.

Arnulf Becker Lorca, After TWAIL’s Success, What Next?  Afterword to the Foreword by Antony Anghie

In the span of two decades, Third World approaches to international law (TWAIL) experienced a meteoric rise, becoming not only one of the most interesting but also one of the dominant approaches to international law. This Afterword to the Foreword by Antony Anghie reflects upon the rise of TWAIL and its significance to the discipline of international law. I argue that having become part of the disciplinary mainstream, TWAIL ‘civilizes’ international law, making it more difficult for international lawyers to ignore or dismiss the colonial origins and legacies of their field. As TWAIL leaves a mark on international law, new spaces for international legal action by the peoples of the global South might have been opened. Does greater action weaken TWAIL’s central insights about colonial origins and legacies? Maybe, and if so, a mainstream TWAIL opens also disciplinary space for other critical approaches that shine light on Third World experiences of international law that point not just to oppression but also to North/South engagement and, potentially, Southern resistance.

Andreas von Arnauld, The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie

In his Foreword, Antony Anghie contrasts two systems of reparations: the Third World system, which is about reparations for colonial expropriation and disenfranchisement, and the Western system, according to which, in the context of decolonization, newly independent states were allowed to expropriate foreign corporations only in return for full compensation. While the Western system has been firmly anchored in international law through the law of aliens and – later – investment law, the Third World system still meets with resistance in international legal discourse. Convinced that international law should be instrumental in overcoming its own colonial origins, I attempt in the following article to explore possible legal foundations by countering the main arguments raised against demands for reparations from the global South: their disruptive effects on today’s societies, conceptual and technical legal obstacles as well as the doctrine of non-retroactivity of the law. Not being a TWAIL scholar myself, I hope that this might serve as a constructive contribution to a common cause.

Joris Larik, Imitation as Flattery: The UK’s Trade Continuity Agreements and the EU’s Normative Foreign Policy

This article analyses the United Kingdom’s (UK) ‘trade continuity programme’. The promise that, once outside the European Union (EU), the UK would strike new, lucrative trade deals continues to be an important part of the Brexiteers’ narrative. What the UK was compelled to do first, however, was to conclude ‘roll over’ agreements to replace the trade agreements already made by the EU. This article posits that, contrary to expectations, the UK’s continuity programme should be regarded as a success – for both the UK and the EU. In most cases, the UK managed to replicate to a very large extent the terms originally granted to the EU, despite being a smaller market and despite challenging circumstances. From the EU’s perspective, the UK’s continuity programme can be regarded as a case of successful norm internalization and export. This first chapter of post-Brexit UK trade policy shows that, even a country that has left the EU, still legally commits itself and others to the latter’s norms and values. Hence, the EU should welcome the UK’s imitation as a shared normative basis to expand cooperation with its former member state in a challenging geopolitical environment.

Hanna Eklund, Peoples, Inhabitants and Workers: Colonialism in the Treaty of Rome

In 1957, when the Treaty of Rome was signed, founding the European Economic Community (EEC), which later became the European Union (EU), four out of six of the original member states were colonial powers. This article uses archival material from the Treaty of Rome negotiations to interrogate ways in which the colonial politics of the time shaped the drafting of legal categories describing individuals: those of peoples, inhabitants and workers. As the Treaty of Rome ‘associated’ colonized territories to the EEC, this article shows how the treaty simultaneously arranged its legal categories to exclude individuals who lived in colonized territories from legal benefits and representation. This article situates the EU as an example of a post-World War II international organization, with its founding legal texts shaped by colonialism.

Yifeng Chen, International Institutions as Forms and Fora: Rao Geping and the Law of International Organizations in China

This article examines the emergence and development in China of the discipline of international organizations law by specifically focusing on the scholarship of Professor Rao Geping, a founding figure of the discipline. Rao’s writings are read in light of his personal life and professional career as well as China’s economic and social reforms and its foreign policy. A communitarian, cooperative and legal approach to international organizations emerged as Rao’s choice. International organizations are seen mostly as fora for interstate deliberations and negotiations and are approached mainly from their procedural aspect and channelling function. What has been highlighted is a facilitative, procedural, and instrumental conception of international organizations rather than an autonomous, functional or regulatory one. Rao advocates an inclusive approach to international organizations, which tends to include flexible, informal frameworks into the ambit of the study of international organizations. In constructing institutions as forms and fora, Rao’s writings effectively play a double role, translating the liberal, progressive ideas of international organizations into domestic international legal studies and facilitating China’s continuous economic reform and political integration into the international system. Rao’s scholarship presents an instructive example of how a scholar from a semi-periphery country may navigate various tensions and paradoxes behind universal concepts and negotiate their concept of international organizations.

Kristina Daugirdas, Rosalyn Higgins on International Organizations and International Law: The Value and Limits of a Policy-Oriented Approach

Taking an approach to international law that embraced key features of the New Haven School, Rosalyn Higgins has made several important contributions to the law of international organizations. In 1963, at a time when no theory had addressed the work of the United Nations’ (UN) political organs, Higgins showed how General Assembly resolutions and other decisions contributed to the development of customary international law. She also demonstrated that, separate and apart from UN member states, the UN Secretariat was contributing to the development of customary international law regarding treaties. Later, in the 1980s and 1990s, as counsel for the International Tin Council and later rapporteur for the Institut de Droit International, Higgins put on the global agenda the issue of accountability of international organizations for harm to third parties, highlighting gaps in existing law and competing policy concerns that precluded easy solutions. Higgins made two contributions in marking the path forward for theorizing about international organizations, one substantive and the other methodological. She highlights the importance of considering international organizations in relation to the full range of actors with whom they interact, including private parties. As a methodological matter, Higgins demonstrates the value of an inductive approach where legal claims are grounded in close, detailed and careful observations of how international organizations actually operate.

Anna Sophia Tiedeke and Martin Fertmann, A Love Triangle? Mapping Interactions between International Human Rights Institutions, Meta and Its Oversight Board

Three years ago, the Oversight Board commenced its work ‘to make principled, independent, and binding decisions … based on respect for freedom of expression and human rights’ for Meta’s platforms Facebook and Instagram. From the very beginning, the vocabulary employed to talk about the Oversight Board was laden with court metaphors. Wary that these metaphors have stirred legal analysis into a specific direction, we move away from trying to fit the Oversight Board within established institutional categories. Instead, we shift the focus from institutions to interactions – that is, to the ‘in-between’. Rather than continuing to debate what the Oversight Board is, we focus on what the Oversight Board does. Our study maps different stages and modes of interaction between Meta, the Oversight Board and international human rights institutions. We show how different actors carefully craft entry points for constructing their respective semantic authority and what kind of strategies they pursue to contest semantic authority of others. Thereby, we uncover the first traces of emerging conversations between Meta, the Oversight Board and international human rights institutions and highlight who is included and excluded and who refuses to participate or to respond. With our intervention, we intend to offer empirically grounded insights into the dynamics at play and paint a more detailed picture of the various roles that novel actors, such as Meta and the Oversight Board, are beginning to assume in the protection of international human rights online.

André Nollkaemper, International Law and the Agony of Animals in Industrial Meat Production

International law leaves states and meat-producing corporations full freedom to subject annually billions of animals to extreme suffering during intensive meat production. In the last two decades, the World Organisation for Animal Health (WOAH) has taken the lead in developing international standards for animal welfare. WOAH alone will not be able to restrict the liberty of international law, given the fact that demanding legal standards may hinder the push to provide nutrients to a growing world population and given global diversity in socio-economic situations, consumer preferences for meat products and cultural values. However, the push to regulate meat production has received new impulses from international institutions that seek to address adverse impacts of industrial animal farming on human interests – in particular, global health, climate change and biodiversity. As yet, this has done little to restrain the freedom under international law to subject farm animals to suffering, but it has expanded the grounds for future global agreements to regulate industrial farming as well as the range of principles and institutions that together constitute the framework within which decisions on industrial meat production that may benefit animal welfare have to be taken.

Armin Steinbach, The EU’s Turn to ‘Strategic Autonomy’: Leeway for Policy Action and Points of Conflict

In a world marked by intensifying geopolitical rivalries, supply chain vulnerabilities and disruptive technological change, ensuring ‘strategic autonomy’ is now an avowed goal of numerous European Union (EU) policy initiatives. This article seeks to facilitate an assessment of this ‘policy turn’ by developing a taxonomy of associated objectives and by illuminating points of conformance and conflict with EU and international law. The EU Treaties offer a robust legal basis for a stronger-values orientation in external relations, for policies designed to rebalance reciprocity in pursuit of geo-economic ambition and for the pursuit of technological leadership within the EU Treaties’ level-playing-field legal foundation. Yet there is a thin line to collisions with international (trade and investment) law, notably where value prioritization, technological preferences or geopolitical concerns are tantamount to discrimination or invite protectionist policy choices. Employment of coercive tools in unilateral fashion question the legal default of multilateralism and openness. Persistent strategic diversity within the Union hinders ‘institutional autonomy’, particularly where unanimity voting makes intergovernmentalism the predominant mode of cooperation. The findings shed light on how the evolving geopolitical environment leads to a recalibration of EU external relations between protection and openness, independence and interdependence, unilateralism and multilateralism and power and rules.

Anton Moiseienko, Legal: The Freezing of the Russian Central Bank’s Assets

The freezing of the Russian Central Bank’s (CBR) foreign currency reserves in the aftermath of Russia’s full-scale invasion of Ukraine has been unparalleled in terms of the amounts involved and the swiftness of its international coordination. Despite the scepticism in some quarters of unilateral sanctions writ large, the key issue under international law is the compatibility of such measures with state immunity. Specifically, two questions arise. The first one is whether the law of state immunity allows for executive, as opposed to judicial, freezing of central bank property. The second one is whether, even if such measures were otherwise in breach of international law, circumstances precluding wrongfulness nonetheless render them lawful. As this article shows, the answer to the first question is finely balanced, but it is virtually certain that the ongoing attachment of the CBR’s assets constitutes lawful countermeasures.

Ron van der Horst, Illegal, Unless: Freezing the Assets of Russia’s Central Bank

In response to the Russian invasion of Ukraine on 22 February 2022, the European Union (EU) and states such as Canada, Japan, Switzerland, the United Kingdom and the United States of America froze assets of the Russian central bank held in their jurisdictions. The sanctions fit in a longer pattern of states freezing assets of foreign central banks, which has been criticized by several states to be incompatible with the law of state immunity. The criticism on these types of sanctions raises the question whether freezing assets of Russia’s central bank complies with the law of state immunity. This article answers this question by investigating whether the law of state immunity is confined to the jurisdiction of courts or if it also applies in the context of executive action. Considering that the law of state immunity also applies to executive action, these sanctioning states (and the EU) violated Russia’s state immunity by freezing assets of Russia’s central bank. These sanctions, however, could be justified as (third party) countermeasures in response to Russia’s invasion of Ukraine.

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