Strategic litigation, a form of litigation brought with the goal to stimulate structural change, is a growing practice in international courts. Although there has been increased scholarly attention on these trends, it has yet to consider the impact arising from strategic litigation before the International Court of Justice (ICJ). This article outlines a basic structure to evaluate the impact of ICJ strategic litigation. It does so generally and through a case study into the campaign by the Organisation of Islamic Cooperation (OIC) to restore Rohingya rights and secure accountability for crimes committed against this population through the claim that Myanmar has violated the Genocide Convention. This article identifies the OIC’s campaign goals and how the ICJ case initiated by The Gambia furthered that campaign and evaluates the impact of this case in advancing Rohingya rights.
{"title":"Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights","authors":"M. Ramsden","doi":"10.1093/ejil/chac025","DOIUrl":"https://doi.org/10.1093/ejil/chac025","url":null,"abstract":"\u0000 Strategic litigation, a form of litigation brought with the goal to stimulate structural change, is a growing practice in international courts. Although there has been increased scholarly attention on these trends, it has yet to consider the impact arising from strategic litigation before the International Court of Justice (ICJ). This article outlines a basic structure to evaluate the impact of ICJ strategic litigation. It does so generally and through a case study into the campaign by the Organisation of Islamic Cooperation (OIC) to restore Rohingya rights and secure accountability for crimes committed against this population through the claim that Myanmar has violated the Genocide Convention. This article identifies the OIC’s campaign goals and how the ICJ case initiated by The Gambia furthered that campaign and evaluates the impact of this case in advancing Rohingya rights.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47647634","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Academic investigators have used behavioural economics, a method developed originally to study consumers and their sentiments towards products, to study matters of public policy. A recent article in the European Journal of International Law – ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ – gives a detailed summary of a series of experiments performed in order to study public sentiment towards investment arbitration. The investigators, Maria Laura Marceddu and Pietro Ortolani observe that public sentiment improves towards the outcome of a dispute settlement procedure when survey respondents are told that the procedure was a ‘court’ with tenured judges, and it worsens when they are told that it was ‘arbitration’ with temporary appointees. From their observations, Marceddu and Ortolani conclude that an international investment court, such as that which the European Union promotes, is a good idea. We suggest, however, that a further inquiry should investigate in greater detail public understanding of what qualities the individuals who serve as judges or arbitrators ought to display, as distinct from the institutional format in which dispute settlement takes place.
学术研究人员已经使用行为经济学来研究公共政策问题。行为经济学最初是用来研究消费者及其对产品的看法的。《欧洲国际法杂志》(European Journal of International Law)最近发表的一篇文章《投资仲裁有什么错?》“一组行为实验的证据”——详细总结了为研究公众对投资仲裁的看法而进行的一系列实验。调查人员Maria Laura Marceddu和Pietro Ortolani观察到，当调查对象被告知该程序是由终身法官组成的“法庭”时，公众对争端解决程序结果的情绪会有所改善，而当他们被告知这是由临时任命的“仲裁”时，这种情绪就会恶化。根据他们的观察，Marceddu和Ortolani得出结论，建立一个国际投资法庭，就像欧盟所提倡的那样，是一个好主意。然而，我们建议进一步的调查应更详细地调查公众对作为法官或仲裁员的个人应表现出什么品质的理解，以区别于进行争端解决的体制形式。
{"title":"Behavioural Economics and ISDS Reform: A Response to Marceddu and Ortolani","authors":"T. Grant, F. Kieff","doi":"10.1093/ejil/chac026","DOIUrl":"https://doi.org/10.1093/ejil/chac026","url":null,"abstract":"\u0000 Academic investigators have used behavioural economics, a method developed originally to study consumers and their sentiments towards products, to study matters of public policy. A recent article in the European Journal of International Law – ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ – gives a detailed summary of a series of experiments performed in order to study public sentiment towards investment arbitration. The investigators, Maria Laura Marceddu and Pietro Ortolani observe that public sentiment improves towards the outcome of a dispute settlement procedure when survey respondents are told that the procedure was a ‘court’ with tenured judges, and it worsens when they are told that it was ‘arbitration’ with temporary appointees. From their observations, Marceddu and Ortolani conclude that an international investment court, such as that which the European Union promotes, is a good idea. We suggest, however, that a further inquiry should investigate in greater detail public understanding of what qualities the individuals who serve as judges or arbitrators ought to display, as distinct from the institutional format in which dispute settlement takes place.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46043389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union (EU) is regularly criticized for using its trade policies to arm-twist other countries into agreeing to supply European factories with raw materials. One area of its trade policy, however, has thus far escaped attention in this regard: trade defence. This should change as the EU increasingly uses trade defence instruments not only to address unfair trade practices but also to seek access to raw materials from other countries. It does so by imposing higher trade defence tariffs on countries that employ policies that ensure raw materials extracted within their territories are processed domestically. This approach is worrisome since, due to the EU’s market size, it may discourage resource-rich countries from developing downstream industries of their own. Furthermore, these countries’ policies are often in line with their international obligations so that the EU is unilaterally infringing on these countries’ sovereignty over their natural resources when targeting these policies. These countries and their exporting producers should thus seize the means at their disposal to put a stop to the EU’s practices.
{"title":"Trade Defence Instruments: A New Tool for the European Union’s Extractivism","authors":"Victor Crochet","doi":"10.1093/ejil/chac024","DOIUrl":"https://doi.org/10.1093/ejil/chac024","url":null,"abstract":"\u0000 The European Union (EU) is regularly criticized for using its trade policies to arm-twist other countries into agreeing to supply European factories with raw materials. One area of its trade policy, however, has thus far escaped attention in this regard: trade defence. This should change as the EU increasingly uses trade defence instruments not only to address unfair trade practices but also to seek access to raw materials from other countries. It does so by imposing higher trade defence tariffs on countries that employ policies that ensure raw materials extracted within their territories are processed domestically. This approach is worrisome since, due to the EU’s market size, it may discourage resource-rich countries from developing downstream industries of their own. Furthermore, these countries’ policies are often in line with their international obligations so that the EU is unilaterally infringing on these countries’ sovereignty over their natural resources when targeting these policies. These countries and their exporting producers should thus seize the means at their disposal to put a stop to the EU’s practices.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43524016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the legal issues concerning the establishment of responsibility for an internationally wrongful act in the context of transboundary disinformation. In light of the unprecedented surge of potentially dangerous health disinformation throughout the COVID-19 pandemic, there is growing consensus among academics and states that influence campaigns that utilize false or misleading information may qualify as a violation of international law, amounting to a prohibited coercive intervention, a breach of the target state’s territorial inviolability or independence of state powers or, in extreme cases, even a use of force. However, the aspects of attributing the dissemination of disinformation to a state and of demonstrating a causal nexus between disinformation and effect that are necessary for international responsibility to arise have not been sufficiently addressed in the literature. This article analyses the challenges that contemporary forms of digital disinformation create for proving attribution pursuant to the customary rules of state responsibility as well as the issue of causation. In doing so, it investigates the content of the primary rules for clues pertaining to the necessary causal nexus and assesses different standards of causation employed in international and domestic law.
{"title":"Infecting the Mind: Establishing Responsibility for Transboundary Disinformation","authors":"Henning Lahmann","doi":"10.1093/ejil/chac023","DOIUrl":"https://doi.org/10.1093/ejil/chac023","url":null,"abstract":"\u0000 This article examines the legal issues concerning the establishment of responsibility for an internationally wrongful act in the context of transboundary disinformation. In light of the unprecedented surge of potentially dangerous health disinformation throughout the COVID-19 pandemic, there is growing consensus among academics and states that influence campaigns that utilize false or misleading information may qualify as a violation of international law, amounting to a prohibited coercive intervention, a breach of the target state’s territorial inviolability or independence of state powers or, in extreme cases, even a use of force. However, the aspects of attributing the dissemination of disinformation to a state and of demonstrating a causal nexus between disinformation and effect that are necessary for international responsibility to arise have not been sufficiently addressed in the literature. This article analyses the challenges that contemporary forms of digital disinformation create for proving attribution pursuant to the customary rules of state responsibility as well as the issue of causation. In doing so, it investigates the content of the primary rules for clues pertaining to the necessary causal nexus and assesses different standards of causation employed in international and domestic law.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44196358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The conventional regional trading arrangement landscape holds two primary models. One is the ‘dynamically expansive supranational model’ of the European Union (EU) that progressively enlarges its community beyond the constituent treaty through its evolving laws and institutions. The other is the ‘static intergovernmental model’ of the United States-Mexico-Canada Agreement (USMCA) where members strictly uphold obligations in the original agreement – no more and no less. A certain genre of Asia-Pacific regional trading arrangements (and beyond in the global South) sits uncomfortably within this bifurcated landscape. Sovereignty-centric, they seek a dynamic and ever-expanding community like the EU but, firmly rejecting supranationalism, insist on intergovernmental modalities as seen in the USMCA. Unsurprisingly, they have not been effective. Using post-2007 integration data from the Association of Southeast Asian Nations, this article presents concordance legalization as a new explanatory framework in this landscape, demonstrating how one can regionalize successfully despite being simultaneously agenda expansive and intergovernmentally operational. Concordance legalization’s four-pronged strategy – the constituent treaty explicitly entrenching intergovernmentalism to facilitate dynamic agenda expansion; the dual-step system of primary and secondary laws (with a carefully calibrated use of hard and soft instruments); the organizational hierarchy that expands, implements and exerts intra-regional accountability pressures through numerous meetings and monitoring mechanisms (rather than adjudication) that enforce compliance – has enabled this curious success.
{"title":"Intergovernmental Yet Dynamically Expansive: Concordance Legalization as an Alternative Regional Trading Arrangement in ASEAN and Beyond","authors":"Hsien-Li Tan","doi":"10.1093/ejil/chac021","DOIUrl":"https://doi.org/10.1093/ejil/chac021","url":null,"abstract":"\u0000 The conventional regional trading arrangement landscape holds two primary models. One is the ‘dynamically expansive supranational model’ of the European Union (EU) that progressively enlarges its community beyond the constituent treaty through its evolving laws and institutions. The other is the ‘static intergovernmental model’ of the United States-Mexico-Canada Agreement (USMCA) where members strictly uphold obligations in the original agreement – no more and no less. A certain genre of Asia-Pacific regional trading arrangements (and beyond in the global South) sits uncomfortably within this bifurcated landscape. Sovereignty-centric, they seek a dynamic and ever-expanding community like the EU but, firmly rejecting supranationalism, insist on intergovernmental modalities as seen in the USMCA. Unsurprisingly, they have not been effective. Using post-2007 integration data from the Association of Southeast Asian Nations, this article presents concordance legalization as a new explanatory framework in this landscape, demonstrating how one can regionalize successfully despite being simultaneously agenda expansive and intergovernmentally operational. Concordance legalization’s four-pronged strategy – the constituent treaty explicitly entrenching intergovernmentalism to facilitate dynamic agenda expansion; the dual-step system of primary and secondary laws (with a carefully calibrated use of hard and soft instruments); the organizational hierarchy that expands, implements and exerts intra-regional accountability pressures through numerous meetings and monitoring mechanisms (rather than adjudication) that enforce compliance – has enabled this curious success.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42626741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On My Way Out – Advice to Young Scholars VII: Taking Exams Seriously (Part 1); Vital Statistics; In This Issue; In This Issue – Reviews","authors":"","doi":"10.1093/ejil/chac022","DOIUrl":"https://doi.org/10.1093/ejil/chac022","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48455093","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Letters to the Editors","authors":"Cornelia Weiss","doi":"10.1093/ejil/chac011","DOIUrl":"https://doi.org/10.1093/ejil/chac011","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46611465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Benedictine Monastery in Abu Ghosh","authors":"","doi":"10.1093/ejil/chac029","DOIUrl":"https://doi.org/10.1093/ejil/chac029","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42968619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ejil/chac008","DOIUrl":"https://doi.org/10.1093/ejil/chac008","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"62 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60700502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ejil/chac010","DOIUrl":"https://doi.org/10.1093/ejil/chac010","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60700551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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