The latest issue of the European Journal of International Law will be published next week. Next week, 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 Three Scholars behind ScholarOne: EJIL’s Associate Editors
Articles
Madelaine Chiam, Monique Cormier and Anna Hood, Law, War and Letter Writing
Taylor St John, Malcolm Langford, Yuliya Chernykh, Øyvind Stiansen, Tarald Gulseth Berge and Sergio Puig, Bargaining in the Shadow of Awards
Jason Webb Yackee, The First French BIT
Hedi Viterbo and Yulia Ioffe, No Refuge from Childhood: How Child Protection Harms Refugees
Critical Review of Governance
Diego Zannoni, Are We Opening Pandora’s Box? Clones, Human Spare Parts and International Law
Cecily Rose, The Progressive Development of International Law on the Return of Stolen Assets: Mapping the Paths Forward
Critical Review of Jurisprudence
Salvatore Caserta and Mikael Rask Madsen, When the Sun, the Moon, and the Stars Align: Litigating LGBTQIA+ Rights and the Death Penalty in East Africa and the Caribbean
Roaming Charges
Things with a Soul: Low Tech
Book Reviews
Tracy-Lynn Field and Michael Hennessy Picard, Review of Gabrielle Hecht. Residual Governance: How South Africa Foretells Planetary Futures
Jelena Bäumler, Review of Ivano Alogna, Christine Bakker, Jean-Pierre Gauci (eds). Climate Change Litigation: Global Perspectives
Daniel Müller, Review of Lukas Vanhonnaeker. Shareholders’ Claims for Reflective Loss in International Investment Law
Diego Mejía-Lemos, Review of Imogen Saunders. General Principles as a Source of International Law: Art 38(1)(c) of the Statute of the International Court of Justice
Book Review Symposium: The Hague Academy (Part II)
Moritz Koenig, Turkey, the Hague Academy, and International Law in the Interwar Period: The Transnational Thinking of Ahmed Reşid
Artur Simonyan, Russia’s Counter-revolutionary International Law in the Scholarship of
Boris Mirkine-Guetzévitch
Karin van Leeuwen, The Hague Academy as a Space of Encounter: How Scelle’s 1933 Teachings on National Courts Landed in the Netherlands
Diane Marie Amann, A Nuremberg Woman and the Hague Academy
The Last Page
Adalbert Stifter, Müdigkeit (transl. Susan McClements Wyss)
ABSTRACTS
Madelaine Chiam, Monique Cormier and Anna Hood, Law, War and Letter Writing
When (some) international crises arise, it has become common for lawyers to respond by penning open letters that call out violations of international law and call on governments, international organizations or civil society to take a suite of actions. In this article, we argue that the prevalence of international law open letter writing means that open letters can now be viewed as a genre of international legal practice. Consequently, there is a need for international lawyers to attend more closely to the purposes, conventions and consequences of the practice. Drawing on open letters that were written in the first three months of the Russia-Ukraine conflict in 2022 and the first three months of the Israel-Gaza conflict in 2023, we argue that there are three main purposes embedded in these letters: advocacy, solidarity and public education. Throughout this article, we explore these purposes, consider their limits and possibilities and analyse how the letter writers seek to achieve them. We contend that, at present, international law open letters pursue advocacy, solidarity and public education in ways that are often narrow and with possible unintended consequences. We suggest that these limitations could be addressed through employing a broader array of open letter-writing modalities.
Taylor St John, Malcolm Langford, Yuliya Chernykh, Øyvind Stiansen, Tarald Gulseth Berge and Sergio Puig, Bargaining in the Shadow of Awards
International investment disputes occupy a curious place in the research programme on compliance. On the one hand, there is a widespread presumption that respondent states generally pay the compensation that they are ordered to pay because not doing so risks more litigation or less investment. On the other hand, these disputes frequently continue long after awards are handed down, there are visible instances of non-payment, and little evidence about if or how most disputes are actually resolved. Compliance with investor-state dispute settlement (ISDS) awards has also been difficult to study because much of what occurs after an arbitral decision falls outside traditional understandings of compliance processes. Therefore, in this article, we introduce a broader term – resolution – and look beyond payment at a wider landscape of post-award dynamics. We also introduce a framework to bring these dynamics into view. This framework places awards in the context of longer-term bargaining and articulates how bargaining is different when it occurs in the shadow of an award. We present three mechanisms through which awards can shape outcomes – as a legitimate outcome, as a coordinating focal point, or as a bargaining endowment– before arguing that the third mechanism is the most common in the context of ISDS.
Jason Webb Yackee, The First French BIT
This article draws upon original research in the French government archives to uncover the story of the negotiations of France’s first bilateral investment treaty – a 1963 treaty with Tunisia. France’s model for the treaty was not Germany’s now-famous 1959 investment treaty with Pakistan but, rather, Switzerland’s own (and far more obscure) first investment treaty, also with Tunisia. The article also shows that the treaty’s invocation of ‘fair and equitable treatment’ was intended to reflect only what customary international law already required. The treaty, despite the lack of an investor-state arbitration clause, seems to have been a relative success. France and Tunisia, entangled in a complex and sensitive post-colonial relationship, successfully managed the fallout from Tunisia’s sudden nationalization of French-owned agricultural properties.
Hedi Viterbo and Yulia Ioffe, No Refuge from Childhood: How Child Protection Harms Refugees
This article sheds new and critical light on the notion, enshrined in international law, that child refugees are a uniquely vulnerable and dependent age group requiring special protection. Although protection is not inherently detrimental, this conception of child protection often ends up harming refugees of all ages. It casts adult refugees as less vulnerable, less dependent and less deserving of protection than their younger counterparts. It downplays the contextual, relational and socially constructed nature of vulnerability, dependence and childhood. It potentially contributes to the disregard for the capacity and wishes of child refugees. It usually affords these children only temporary protection, thereby increasing their uncertainty, driving them to disengage from welfare services and incentivizing the state to delay decisions about their entitlements. Meanwhile, international law not only places great value on children’s relationships with their parents but also authorizes the punishment of supposedly unfit parents, and this ambivalence helps states weaponize legal principles of child protection against refugee families. What is needed, however, is not for child refugees to be denied protection. Rather, a fundamental reimagining of protection is in order: a shift from hierarchies of vulnerability, dependence and deservingness towards free global movement based on solidarity and equity.
Diego Zannoni, Are We Opening Pandora’s Box? Clones, Human Spare Parts and International Law
This article aims to verify whether human cloning is prohibited in international law and, if so, to what extent. In order to answer this question, it seeks to demonstrate that the complexity of the phenomenon and its concrete implications require a series of appropriate distinctions to be made. The article starts with an overview of the different positions adopted by the member states during the debate in the United Nations (UN) General Assembly, which led to the adoption of the UN Declaration on Human Cloning and continues with a focus on the European legal human cloning framework to verify whether it is more precise than the general international one. It demonstrates that reproductive cloning is prohibited both at the global level and in Europe, while therapeutic cloning so far remains within the limits of lawfulness.
Cecily Rose, The Progressive Development of International Law on the Return of Stolen Assets: Mapping the Paths Forward
The return of stolen assets represents a ‘fundamental principle’ of the United Nations Convention against Corruption (UNCAC). The convention’s inclusion of a chapter on asset recovery was considered a groundbreaking achievement at the time of the treaty’s conclusion in 2003. The treaty negotiations concerning these provisions, however, were highly controversial, and the discussions did not benefit from a substantial body of practical experience concerning the return of stolen assets. In the 20 years since the treaty’s conclusion, states have acquired some experience with asset return, and the gaps and limitations in UNCAC’s regime governing asset recovery have become apparent. Article 57 of UNCAC, concerning asset return and disposal, exemplifies the need for progressive development of international asset recovery laws. Article 57 requires ‘updating’ or supplementation because the provision does not adequately address major recurrent issues, such as the recipients, use and monitoring of returned assets; the transparency of the asset return process; and the participation of civil society in the process. Normative development could involve formal law reform, within the UNCAC legal framework, but it could also involve more informal legal change, outside of the UNCAC regime. The Global Forum on Asset Recovery represents an important example of legal change that raises issues of both accountability and effectiveness.
Salvatore Caserta and Mikael Rask Madsen, When the Sun, the Moon, and the Stars Align: Litigating LGBTQI A+ Rights and the Death Penalty in East Africa and the Caribbean
This article analyses LGBTQIA+ rights and death penalty litigation in the Caribbean and East Africa before and after the establishment of new regional international courts. LGBTQIA+ rights and the death penalty are both difficult and contested issues where global movements and litigation strategies easily clash with local sentiments. For litigation to have an impact in such issue areas, the article finds that three elements must align. First, there is a need for new institutional opportunities such as new judicial venues or laws. Second, there is a need for coordinated legal strategies that can utilize the available legal venues. Third, there is a need for a societal momentum for the cause, or at least the absence of strong political contestation against the cause. In our study, the establishment of new regional courts provided institutional opportunities that could be seized by transnational litigation networks. And as international courts operate at a distance from local politics, they have created a more neutral international legal opportunity structure. In the two regions and across the two issue areas studied, these three elements were most clearly aligned regarding death penalty litigation in the Caribbean and the least aligned regarding LGBTQIA+ litigation in East Africa.
