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European Journal of International Law
Journal Prestige (SJR): 0.694
Citation Impact (citeScore): 1
Number of Followers: 240  
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0938-5428 - ISSN (Online) 1464-3596
Published by Oxford University Press Homepage  [411 journals]
  • Editorial: Celebrating Peer Review: EJIL’s Roll of Honour and
           Announcement of the first EJIL Peer Review Prize; Brexit – Apportioning
    • Pages: 1087 - 1103
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa011
      Issue No: Vol. 30, No. 4 (2020)
  • Grotius’ ‘Rule of Law’ and the Human Sense of Justice: An Afterword
           to Martti Koskenniemi’s Foreword
    • Authors: Nijman J.
      Pages: 1105 - 1114
      Abstract: Rereading Grotius in 2019 as a sequel to the 1990 and 2009 European Journal of International Law’s contributions on ‘the politics of international law’, at a time of staggering global inequality, Martti Koskenniemi asks what we can learn from Grotius about the ‘tendency [of humans] to subordinate themselves’ to law and, I may add, the limits of that tendency. While I agree with Koskenniemi that Grotius’ ‘rule-of-law’ conception may help us understand the current backlash against the international rule of law, I suggest an alternative reading of this conception that may assist us even more. Grotius’ understanding of humans and of the importance of corrective and distributive justice as components of the international rule of law helps us see the cry ‘take back control’ as ‘indignation’ about the (social) injustices and global inequality that international institutions (re)produce and as a cry for just international institutions. Koskenniemi’s Foreword rightly asks: what is ‘required of us’' I suggest that we should understand the current backlash as an institutional crisis as well as a crisis of selfhood. Reading Grotius may encourage us to include critical language of distributive justice in our ‘bricolage’ to address ‘legitimate popular grievance’ about the international rule of law and address the human desire for just institutions also at the international level.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz068
      Issue No: Vol. 30, No. 4 (2020)
  • International Legal Histories as Orders: An Afterword to Martti
           Koskenniemi’s Foreword
    • Authors: Iurlaro F.
      Pages: 1115 - 1119
      Abstract: In this article I address the question of what Martti Koskenniemi refers to in his EJIL Foreword as Hugo Grotius’ legal imagination – the type of values he was trying to convey and the strategies he meant to pursue while constructing his idea of an international legal order. As a matter of fact, focusing on such an apparently narrow aspect is not just relevant to those with a historical interest in Grotius. It also tells us something about the inveterate relationship between international law and historiographic practices. What I want to suggest here is that the history of international law is not just ana posterioricritical reflection on the international legal order – a subgenre for lovers of intellectual escapism in search of a distraction from the many problems of the contemporary world – but, rather, that one of the many successful projects of international law was (and still is) the ambition to order the world through histories.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa004
      Issue No: Vol. 30, No. 4 (2020)
  • The Rule of Law: Sociology or Normative Theory' An Afterword to Martti
           Koskenniemi’s Foreword
    • Authors: Straumann B.
      Pages: 1121 - 1127
      Abstract: Martti Koskenniemi is correct to view Hugo Grotius as a thinker committed to the rule of law. But there is a crucial difference between Grotius’ and Koskenniemi’s respective concepts of the rule of law. Grotius’ concept of the rule of law is normative and requires a moral cognitivist outlook. Koskenniemi, on the other hand, holds a sociological concept of the rule of law. Koskenniemi is correct that, for the rule of law to find its ‘normative voice’, Grotius may well be of help. For this normative voice to make itself heard, however, it will have to rise above the sceptical reduction of the rule of law to normatively inert sociological facts.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz069
      Issue No: Vol. 30, No. 4 (2020)
  • Judging International Judgments Anew' The Human Rights Courts before
           Domestic Courts
    • Authors: Kunz R.
      Pages: 1129 - 1163
      Abstract: In recent times, instances of contestation against the European Court of Human Rights and the Inter-American Court of Human Rights have made headlines, and, in many of these cases, domestic courts have played a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This article undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this reflects to some extent the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the article argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz063
      Issue No: Vol. 30, No. 4 (2020)
  • Entrepreneurial Justice: Syria, the Commission for International Justice
           and Accountability and the Renewal of International Criminal Justice
    • Authors: Burgis-Kasthala M.
      Pages: 1165 - 1185
      Abstract: This article argues that the crisis of governance generated by the Syrian civil war presents both a challenge and an opportunity to practitioners of international criminal justice. The article also argues that, irrespective of the Syrian case, international criminal law (ICL) institutions are in need of innovation and that increasingly ICL discourses display a blurring between public and private idioms. Evaluating the contribution of the Commission of International Justice and Accountability (CIJA) is one way then of assessing how ICL might evolve. This article characterizes CIJA’s work as exemplifying ‘entrepreneurial justice’, not only in Syria but also in a range of other (post-)conflict settings. We can define entrepreneurial justice as the identification of a gap or weakness in existing public accountability fora and the creation of a new private or privatized organization and/or approach that seeks to address (at least part of) this gap. Although questions remain about CIJA’s own accountability, along with its potential contribution to realizing accountability, this article suggests that its presence within the ICL field is a necessary one and that it has already started to have effects within Syria and beyond.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz065
      Issue No: Vol. 30, No. 4 (2020)
  • ‘But the Last Word Is Ours’: The Monopoly of Jurisdiction of the Court
           of Justice of the European Union in Light of the Investment Court System
    • Authors: de Abreu Duarte F.
      Pages: 1187 - 1220
      Abstract: This article develops the concept of the monopoly of jurisdiction of the Court of Justice of the European Union (CJEU) through the analysis of the case study of the Investment Court System (ICS). By providing a general framework over the criteria that have been developed by the Court, the work sheds light on the controversial principle of autonomy of the European Union (EU) and its implications to the EU’s external action. The work intends to be both pragmatic and analytical. On the one hand, the criteria are extracted as operative tools from the jurisprudence of the CJEU and then used in the context of the validity of the ICS. This provides the reader with some definitive standards that can then be applied to future cases whenever a question concerning autonomy arises. On the other hand, the article questions the reasons behind the idea of the monopoly of jurisdiction of the CJEU, advancing a concept of autonomy of the EU as a claim for power and critiquing the legitimacy and coherence of its foundations. Both dimensions will hopefully help to provide some clarity over the meaning of autonomy and the monopoly of jurisdiction, while, at the same time, promoting a larger discussion on its impact on the external action of the EU.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz064
      Issue No: Vol. 30, No. 4 (2020)
  • Roaming Charges: Kaleidoscope Special Anniversary Edition
    • Pages: 1221 - 1223
      Abstract: We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution or the latest group photograph of ICJ judges.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz036
      Issue No: Vol. 30, No. 4 (2020)
  • The Psychology of International Law: An Introduction
    • Authors: van Aaken A; Broude T.
      Pages: 1225 - 1236
      Abstract: Public international law scholarship opens evermore to social science theories and methodologies, but the implications of cognitive research and behavioural economics have not been systematically explored, even though they have been successfully applied to domestic legal issues and are increasingly used in public policy and regulation. In this symposium, we aim to fill two research gaps: first, international law and economics and international political economy rarely use behavioural insights, while behavioural law and economics lacks international dimensions, and, second, international political psychology sidesteps the importance of international norms. This introduction surveys the main psychological angles employed in the articles of the symposium as well as the difficulties envisioned in this research agenda of applying psychology to international law and using experiments for the study of international law. These difficulties notwithstanding, behavioural studies have generated many insights that have the potential to greatly enrich our understanding of international law.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa008
      Issue No: Vol. 30, No. 4 (2020)
  • Experimental Insights for International Legal Theory
    • Authors: van Aaken A.
      Pages: 1237 - 1262
      Abstract: Insights from experimental psychology and economics have rarely been applied to the study of international law and never to the study of international legal theory. This article applies them to socio-legal international theory that has grosso modo two important background paradigms with several variants: rationalist and constructivist. In both paradigms, the interest in understanding and explaining international law by uncovering causal mechanisms in international cooperation and compliance and in asking how cooperation is sustained in a system as decentralized as international law is paramount. In both, fundamental assumptions regarding the behaviour of actors are made. However, regardless of the theoretical standpoint, both fall short of experimental evidence about their behavioural assumptions. The article uses experimental evidence provided by public good games as a conceptualization of how social order is constructed and upheld in systems without central authority such as international law. It aims to illuminate the behavioural basis of important building blocks of international cooperation and law by discussing the preferences of states and strategic interaction, reciprocity, sanctions, communication and trust as well as consent and legitimacy, reflecting on what the experimental insights teach us on the assumptions of rationalist and constructivist approaches to international legal theory. These experiments are one means to test behavioural assumptions in international legal theory.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa009
      Issue No: Vol. 30, No. 4 (2020)
  • Nudge Goes International
    • Authors: Teichman D; Zamir E.
      Pages: 1263 - 1279
      Abstract: This article introduces the concept of nudge – low-cost behaviourally informed modes of regulation that influence people’s decisions without limiting their choice set – into the behavioural analysis of international law. It sketches out the pathways through which nudges might influence the behaviour of countries, and highlights the normative implications associated with utilizing these regulatory tools in the international arena. That done, the article presents numerous case studies that demonstrate how nudges such as defaults, goals and rankings are integrated into the international legal terrain.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa007
      Issue No: Vol. 30, No. 4 (2020)
  • Rulers or Rules' International Law, Elite Cues and Public Opinion
    • Authors: Strezhnev A; Simmons B, Kim M.
      Pages: 1281 - 1302
      Abstract: One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries – the USA, Australia and India – which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on a proposed or ongoing restrictive refugee policy that was endorsed by the government but also likely contravened international refugee law. Respondents were randomly exposed to messages highlighting the policy’s illegality and/or elite endorsement. The results show that, on average, the international law messages had a small but significant persuasive effect in reducing support for the restrictive policy, at most 10 percentage points. Surprisingly, there was no evidence that the countervailing elite endorsement was a significant moderator of this effect. However, in the case of the USA and among Republican co-partisans of the president, the elite endorsement independently increased respondents’ beliefs that the restriction was legal under international law while having no effect on support for the policy. The results suggest that cues from domestic elites do not strictly trump those from international sources and that, despite cues about national leaders’ policy advocacy, international law can affect the attitudes of some voters even on an issue as heavily politicized as refugee policy.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa002
      Issue No: Vol. 30, No. 4 (2020)
  • Outcome Bias and Expertise in Investigations under International
           Humanitarian Law
    • Authors: Broude T; Levy I.
      Pages: 1303 - 1318
      Abstract: Many international law decisions are made by individuals, often possessed with expertise, legal or otherwise. We examine individual international humanitarian law (IHL) decision-making on two levels: military decisions madeex anteregarding real-time operational questions under conditions of uncertainty and imperfect information, and subsequentex postevaluations of the propriety of military decisions in the context of military investigations regarding legal responsibility with respect to proportionality and reasonableness. IHL requiresex postinvestigators to consider only information available at the time decisions were made. Through an experimental vignette study conducted with laypersons, legal experts and people with field experience, we test whether they are susceptible to cognitive ‘outcome bias’, specifically the extent to which the knowledge of operational outcomes, especially regarding incidental civilian harm, influencesex postnormative evaluations. Our results demonstrate a general tendency towards outcome bias, which is somewhat tempered by expertise. Individuals with operational decision-making experience may be less prone to outcome bias than legal experts. We discuss possible implications for the design of military investigations relating to IHL.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa005
      Issue No: Vol. 30, No. 4 (2020)
  • Cognitive Sociology, Social Cognition and Coping with Racial
           Discrimination in International Law
    • Authors: Hirsch M.
      Pages: 1319 - 1338
      Abstract: Cognitive science is the interdisciplinary study of mental processes involved in the acquisition, classification, organization and interpretation of knowledge in the human environment as well as the decision taken on the appropriate action based upon it. The point of departure is that people do not directly sense information; cognitive processes mediate between sensory input from the environment and behaviour. These cognitive processes are influenced by neurological, psychological, socio-cultural and other factors. In recent years, there has been growing scholarly interest in the study of cognitive sociology, focusing on the interactions between culture and cognition. This stream in sociological literature draws upon and complements cognitive psychological literature. The prohibition on discrimination constitutes one of the fundamental rules in international human rights law, but studies reveal that racial discrimination is pervasive and persistent in many states. Non-compliance with this international legal rule is significantly related to cognitive processes through which people acquire and interpret incoming information about other people. Racial groups are socially constructed and deeply ingrained socio-cognitive biases feed and reproduce racially discriminatory behaviour. These biased mental processes, however, are not inevitable and may change over time. Effective struggle against racial discrimination requires that international legal mechanisms also address the socio-cognitive infrastructure that facilitates and sustains racial discrimination. Consequently, this study also discusses some international legal strategies aimed at mitigating cognitive biases and enhancing compliance with treaties prohibiting racial discrimination.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa003
      Issue No: Vol. 30, No. 4 (2020)
  • Debiasing International Economic Law
    • Authors: Puig S.
      Pages: 1339 - 1357
      Abstract: A flourishing number of bodies evaluate the conduct of government officials against broad standards, decide complex questions of scientific probity and calculate the present value of past decisions. The effects of implicit biases (systematic patterns of deviation from rationality in judgment) impact the assessment of these issues, which are central to international economic law. Such effects are well understood by psychologists and increasingly confirmed by experiments involving legal actors, including judges. In this article, I provide three concrete examples of implicit biases affecting international tax, trade and investment adjudication, and I call for the incorporation of mechanisms to overcome such biases as well as their strategic exploitation by litigants. At a conceptual level, I propose a typology to think of ‘debiasing tools’ for international adjudication – mechanisms that can act as a centrepiece of coordination of information rather than mere inoculants of the habits of mind on adjudicators. At a normative level, I pose that biases may impact confidence in dispute settlement systems and that both concerns for sovereignty and a predilection for negotiated solutions make international economic law ripe for testing these interventions.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa001
      Issue No: Vol. 30, No. 4 (2020)
  • How Should We Think about the Winners and Losers from Globalization'
           Three Narratives and Their Implications for the Redesign of International
           Economic Agreements
    • Authors: Lamp N.
      Pages: 1359 - 1397
      Abstract: In the wake of Donald Trump’s election to the US presidency, the ‘losers’ from globalization have received unprecedented attention. While few would contest that manufacturing workers in developed countries have lost out over the past decades, the remedies proposed by President Trump have been met with a mixture of concern and ridicule by the trade establishment. And, yet, it seems clear that, at least in the USA, politicians and trade officials are no longer able to convince voters that international economic agreements will ‘lift all boats’. Instead, those engaged in debates about trade policy will need to be open about the fact that international economic agreements create both winners and losers. This article identifies three narratives about who those winners and losers are. The article argues that the contestation between these three narratives is not one that can be resolved through empirical analysis but, instead, that the narratives contain irreducible normative elements. The article further explores the implications of these narratives for the redesign of international economic agreements.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz067
      Issue No: Vol. 30, No. 4 (2020)
  • How Should We Think about the Winners and Losers from Globalization' A
           Reply to Nicolas Lamp
    • Authors: Hoekman B; Nelson D.
      Pages: 1399 - 1408
      Abstract: How should we think about the winners and losers from globalization' What role can narrative analysis play in doing so' We argue that to be useful, identifying politically relevant narratives on the distributional effects of globalization, and the role played by trade agreements in fostering such effects, must have an empirical basis. Characterizing different narratives and inferring from each the implications for the (re-)design of international agreements without analysis whether the suggested policy reforms will help losers from globalization does not advance matters. Effectively employed, narrative analysis can extend our knowledge of the politics of trade and policy towards globalization more generally. To do so, it must have an analytical foundation, centre on the relationship of the narrative to the facts, ask which narrative is more persuasive based on empirical evidence and assess whether inferred policy implications will address the core issues of concern to those who employ the narrative.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz070
      Issue No: Vol. 30, No. 4 (2020)
  • Changing Global Dynamics and International Competition Law: Considering
           China’s Potential Impact
    • Authors: Ng W.
      Pages: 1409 - 1430
      Abstract: Competition law is increasingly international in its scope and application. Today, over 130 jurisdictions have competition law. Although most competition laws are national in scope and no formalized competition law-related rules apply globally, international norms for competition law have been created and fostered. These norms largely reflect the perspectives and approaches of the USA, European Union and developed countries more generally. However, developing countries now constitute the majority of competition law jurisdictions, and Brazil, Russia, India, China and South Africa – which all have competition laws – have risen as important economic powers. Whether and how these changing global dynamics will impact international competition law norms is an important issue that remains under-explored. This article considers this question by examining China and its competition law. It examines the extent to which China has adopted and incorporated international norms into its competition law and evaluates whether China’s approach to, and understanding of, competition law might challenge or change the development of international competition law norms in the future.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz066
      Issue No: Vol. 30, No. 4 (2020)
  • Should China’s Competition Model be Exported': A Reply to Wendy
    • Authors: Fox E.
      Pages: 1431 - 1440
      Abstract: The Chinese competition model is primarily distinguished by its Chinese characteristics: a baseline that closely resembles US/EU law and an overlay of ‘state over market’ to do what is strategically good for China. Replying to Wendy Ng’s suggestion that the Chinese competition model might be usefully exported to developing countries, this article disagrees. The Chinese law does have some outstanding characteristics, and developing countries might need a state/market balance different from the laissez-faire West. But a more appropriate alternative vision for developing democracies is the state as enabler of the market rather than the state as controller of the market, along with emphasis on the inclusiveness value in controlling the power of the giant corporations.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa010
      Issue No: Vol. 30, No. 4 (2020)
  • Impressions - Reviving a Tradition
    • Authors: Dupuy P.
      Pages: 1441 - 1446
      Abstract: Beginning in 2011, EJIL published occasional Impressions – ‘reviews’ of sorts, in which academics reflected on works that shaped their approach to international law. Introducing the idea, Isabel Feichtner, EJIL’s Book Review Editor at the time, expressed her hope for ‘personal reflections’ by ‘older, possibly wiser, scholars of public international law’, which would highlight ‘the impact a book has had on their own thinking as well as its past and continued relevance for public international law scholarship’ (22 EJIL (2011), 617). That very much remains our hope today; and we continue to believe that Impressions can complement and enrich EJIL’s Review section. We are delighted to revive the tradition with an Impression by Pierre-Marie Dupuy, who reintroduces a book published nearly 50 years ago – Michel Virally’s L’Organisation mondiale.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz073
      Issue No: Vol. 30, No. 4 (2020)
  • Human Rights in Global Health: Rights-Based Governance for a Globalizing
    • Authors: Burci G.
      Pages: 1447 - 1452
      Abstract: MeierBenjamin Mason and GostinLawrence O. (eds). Human Rights in Global Health: Rights-Based Governance for a Globalizing World. Oxford: Oxford University Press, 2018. Pp. 585. £43.00. ISBN 9780190672676.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz071
      Issue No: Vol. 30, No. 4 (2020)
  • Justice Framed: A Genealogy of Transitional Justice
    • Authors: Drumbl M.
      Pages: 1452 - 1454
      Abstract: ZuninoMarcos. Justice Framed: A Genealogy of Transitional Justice. Cambridge, UK: Cambridge University Press, 2019. Pp. 289. £85.00. ISBN: 9781108475259.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz072
      Issue No: Vol. 30, No. 4 (2020)
  • Gender, Alterity and Human Rights: Freedom in a Fishbowl
    • Authors: Kouvo S.
      Pages: 1454 - 1458
      Abstract: KapurRatna. Gender, Alterity and Human Rights: Freedom in a Fishbowl. Elgar Studies in Legal Theory. Cheltenham: Edward Elgar, 2018. Pp. 307. €90. ISBN 9781788112529.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz074
      Issue No: Vol. 30, No. 4 (2020)
  • Good Faith in International Investment Arbitration
    • Authors: Voon T.
      Pages: 1458 - 1463
      Abstract: SipiorskiEmily. Good Faith in International Investment Arbitration. Oxford: Oxford University Press, 2019. Pp. 304. £125. ISBN: 9780198826446.
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chz075
      Issue No: Vol. 30, No. 4 (2020)
  • What kind of Brit shall I be'
    • Pages: 1465 - 1468
      Abstract: On Monday, I will pledge:
      PubDate: Mon, 13 Apr 2020 00:00:00 GMT
      DOI: 10.1093/ejil/chaa006
      Issue No: Vol. 30, No. 4 (2020)
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