Two Weeks in Review, 3 – 16 January 2022

Ernst Ulrich Petersmann picks up themes from a recent post by Philip Allott, and suggests that Allott’s vision is unlikely to be achieved without ’empowering citizens through human and constitutional rights and institutional remedies.’ He argues that ‘the EU’s multilevel, ordo-liberal constitutionalism offers mankind’s best hope for transforming power politics into cosmopolitan community law respecting human rights’ and that ‘European ordo-liberalism must assume leadership for reforming UN and WTO legal practices (eg by introducing carbon border adjustment mechanisms unilaterally if multilateral negotiations fail).’ Read more about how Petersmann thinks UN and WTO law can be reformed to meet current governance crises here.

Diane Desierto asks one of the most pressing questions of our time: ‘what in our international legal arrangements prevents or delays overcoming the global vaccine and therapeutics lag that perpetuates this endless cycle for the whole world?’ She returns to the issue of the proposed TRIPS waiver, currently being ‘blocked’ by the EU, and argues that the EU should rethink its opposition to the waiver. Desierto examines the EU’s counter-proposal to the TRIPS waiver and argues there is a ‘plausible basis to observe that an abuse of rights is taking place with the EU’s continued blocking of the TRIPS waiver at the WTO’. 

Deepak Raju considers the EU’s draft Regulation on the Protection of the Union and its Member States from Economic Coercion by Third Countries and questions the assumption that coercion, as it has been defined in the draft Regulation, could constitute an internationally wrongful act against which countermeasures can be directed. Raju notes that there is a lack of consensus on what constitutes unlawful economic coercion and gives an example of a fine line between ‘coercion’ and ‘diplomacy’. Read more of his analysis here.

Philip Allott reflects on a new approach to the problem of whether international law is ‘true law’. According to Allot:

‘A new approach to the question may be to consider the universal social phenomenon of legality with a view to seeing international law as a particular instance of that phenomenon. This would correct what the philosopher Bertrand Russell calls a category mistake, replacing the category of national law with the universal category of legality.  An analogy might be with the category mistake of understanding divinity as the possession of characteristics of the human being.’

He suggests this is a fundamental question of our time, because the ‘denial of the status of international law as true law’ allows the threat of hyper-nationalism. Read more about his ‘pure philosophy of international law as true law’ here.

Julia Emtseva writes about the recent protests in Kazakhstan and the quick response by Russia to President Tokayev’s request for assistance. Emtseva discusses the Collective Security Treaty Organization regime and its provisions that permit the Russian military to enter Kazakhstan, including the requirement for unanimous agreement of the Organization’s Collective Security Council. Read more about the situation in Kazakhstan and the response of the CSTO in Emtseva’s post here.

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The European Journal of International Law has new advance articles and advance reviews available to read online.