New Issue of EJIL (Vol. 35 (2024) No. 1) – 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. 

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

Editorial

In This Issue; In This Issue – Reviews; The Human ChatGPT – The Use and Abuse of Research Assistants; Professor Francesco Francioni (1942 – 2024); Vital Statistics

Foreword

Karen Knop, Looking at Portraits

Articles

Luiza Leão Soares Pereira and Fabio Costa Morosini, Textbooks as Markers and Makers of International Law: A Brazilian Case Study

Artur Simonyan, International Lawyers in Post-Soviet Eurasia: Decoding the Divisibility

Andrew Lang, ‘Global Disordering’: Practices of Reflexivity in Global Economic Governance

EJIL: Debate!

Emanuel Castellarin, Is Imitation Really Flattery? The UK’s Trade Continuity Agreements: A Reply to Joris Larik

Roaming Charges

Moments of Dignity: Bereavement

Critical Review of Jurisprudence

Fleur van Leeuwen, Epistemic Blind Spots, Misconceptions, and Stereotypes: The Home Birth Jurisprudence of the European Court of Human Rights

Ben Czapnik, Consistency Testing in WTO Law and the Special Case of Moral Regulation

ESIL Corner

Jean d’Aspremont, Fairness and the Quaintness of International Legal Debates in Europe

Federica Cristani, “Is International Law Fair? Le droit international est-il juste?”: A Few Remarks from the 2023 ESIL Conference in Aix-en-Provence  

Review Essays

Alan Tzvika Nissel, One State’s Rebel is Another State’s Agent. Review of Kathryn Greenman. State Responsibility and Rebels: The History and Legacy of Protecting Investment Against Revolution

Rebecca Mignot-Mahdavi, Anti-Solutionism and Anti-Formalism in Global Algorithmic Governance Studies. Review of Claudia Aradau and Tobias Blanke. Algorithmic Reason: The New Government of Self and Other

Book Reviews

Melanie O’Brien, Review of Melinda Rankin. De Facto International Prosecutors in a Global Era: With My Own Eyes

Anne Saab, Review of Matias E. Margulis, Shadow Negotiators: How UN Organizations Shape the Rules of World Trade for Food Security

Jan Klabbers, Review of Swati Srivastava. Hybrid Sovereignty in World Politics

Serena Forlati, Review of Freya Baetens (ed.), Identity and Diversity on the International Bench. Who is the Judge?

Last Page

Rabindranath Tagore, Gitanjali 92

ABSTRACTS

Luiza Leão Soares Pereira and Fabio Costa Morosini, Textbooks as Markers and Makers of International Law: A Brazilian Case Study

This article challenges conventional views of international law textbooks as mere instructional tools and explores them as powerful sites for shaping knowledge and the discipline. Drawing on empirical methods and critical theory, we analyse the 10 main international law textbooks used in Brazil and conduct interviews with their authors to illuminate the textbooks’ complexities and their potential for shaping the discipline and the profession. It delves into the tension between the structure of international law as depicted in the textbooks and the agency of their authors, investigating the authors’ identities and backgrounds. Brazil serves as a compelling case study due to its numerous international law textbooks and their widespread use. Our results indicate a predominant universalist approach in Brazilian textbooks and their connection to the French international law tradition. Moreover, the study sheds light on the Brazilian ‘invisible college’ of international lawyers, revealing gender and racial disparities and institutional centralities. It also uncovers crucial omissions in the textbooks, such as the relationship of international law to colonialism, slavery, race, gender and economic inequality. Overall, this study offers a comprehensive understanding of international law as a field in Brazil and provides a valuable methodological framework for future research on textbooks’ role in shaping the discipline.

Artur Simonyan, International Lawyers in Post-Soviet Eurasia: Decoding the Divisibility

This article examines the epistemic community of post-Soviet Eurasian international lawyers who interact, publish, teach, and practise international law, predominantly in Russia and in Russian, forming a Russia-centred divisible college. By decoding the unknown group, the article presents its defining characteristics, including the link between membership in a Russia-centred epistemic community and the members’ potential Russlandversteher (Russia-apologist) behaviour. Analysing how post-Soviet Eurasian international lawyers act within different social arrangements (legal education, academic publication and practice of law), the article demonstrates how and to what extent such divisibility is symbolized in their political actorship.

Andrew Lang, ‘Global Disordering’: Practices of Reflexivity in Global Economic Governance

In this article, I offer a reinterpretation of late 20th-century ‘neo-liberal’ transformations of global economic governance. My argumentative foil is a macro-institutional interpretation of the post-1980s period in which neo-liberalism appears as programmatic institutional form and disciplinary formation. I argue that a second, and complementary, dynamic also needs to be taken into account – namely, the emergence and operationalization of a set of critical technologies for embedding practices of reflexivity within the state. I suggest, moreover, that attention to this dimension of neo-liberalization provides a new perspective on the present. I offer an interpretation of the current moment of transition as one in which a similar repertoire of neo-liberal techniques of reflexivization are, in a second iteration, being trained on the architecture of global economic governance itself.

EJIL: Debate!

Emanuel Castellarin, Is Imitation Really Flattery? The UK’s Trade Continuity Agreements: A Reply to Joris Larik

The assessment of the United Kingdom’s (UK) trade continuity programme is open to debate. Joris Larik argues that this programme should be seen as a success both for the UK (although a ‘modest’ one) and for the European Union (EU). However, the significance of the UK’s trade continuity agreements should not be overstated as the replication of the EU’s trade agreements seems to result above all from pragmatic considerations. It is submitted that this programme cannot be described as a success for the UK and only allows limited conclusions to be drawn about the external influence of the EU’s trade policy.

Fleur van Leeuwen, Epistemic Blind Spots, Misconceptions, and Stereotypes: The Home Birth Jurisprudence of the European Court of Human Rights

This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court’s gender sensitivity.

Ben Czapnik, Consistency Testing in WTO Law and the Special Case of Moral Regulation

There is a debate in World Trade Organization (WTO) law about whether the right to regulate for public interest purposes is conditioned on a requirement to do so consistently. While the early Appellate Body (AB) jurisprudence eschewed consistency testing under the formal legal test, it refrained from explicitly rejecting the practice. Subsequent AB rulings have seemingly adopted a narrow type of consistency testing through the doctrine of ‘legitimate regulatory distinctions’. A case could also be made that WTO tribunals sometimes embrace consistency testing under Article XX of the General Agreement on Tariffs and Trade, although this is not explicitly acknowledged or universally recognized. In Seals, Canada explicitly attacked the European Union’s (EU) seal products ban for its lack of consistency with the EU’s broader animal welfare settings. This dispute provided an opportunity – indeed, an obligation – for the AB to establish a clear doctrine on consistency testing. This article argues that the AB shirked its duty through reasoning techniques that avoided meaningful engagement with the substance of Canada’s argument. The AB did not truly reject consistency testing, but its precise views are hard to glean due to reasoning that is opaque, confused and even contradictory. This article argues that there is a compelling case for consistency testing, at least in certain ‘public morals’ disputes, and that the AB should provide clearer guidance.

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