In This Issue

This issue opens with two Letters to the Editors offering very different views on the recent Editorial entitled ‘Cancelling Carl Schmitt’.

The Articles section of this issue opens with a contribution by Bernard Hoekman and Petros Mavroidis, who offer a fresh look at how the current crisis of the World Trade Organization (WTO) dispute settlement system could be overcome. They argue that the key to addressing the WTO’s ongoing challenges is to revitalize the institution as a forum for rule-making. In the next article, Antonio Coco and Talita de Souza Dias tackle another pressing problem, namely whether there is a due-diligence principle in international law that applies to cyberspace. Surveying recent state practice as well as older case law, the authors argue that, regardless of whether new rules on ‘cyber due diligence’ have emerged, a mosaic of different, pre-existing obligations already applies in cyberspace by default. For his part, Felix E. Torres critically examines the approach of the European Court of Human Rights to protecting human rights in conflict-related scenarios. Questioning how suitable the Court’s current approach is vis-à-vis mounting socio-economic challenges that usually arise during and after conflicts, Torres proposes an alternative way of looking at this problem. Concluding this section, Johannes Hendrik Fahner revisits the old but often neglected principle of in dubio mitius in treaty interpretation. Fahner makes the case that the principle has a place in contemporary international legal reasoning. He argues that it can help reduce the backlash against the legitimacy of international adjudicators.

The issue continues with an EJIL: Debate! Gábor Kajtár and Gergő Barna Balázs pose the question: Can attacks against embassies serve as a basis for the invocation of self-defence in international law? The two authors survey international case law as well as more than 700 instances of related state practice in order to answer this question. Finding that the invocation of a right of self-defence when a state’s embassy has been attacked has been exceptionally rare in practice, they answer their own question with a no. In his Reply, Tom Ruys argues against this conclusion. While not disputing the empirical data gathered by Kajtár and Balázs, Ruys suggests that they may be subject to a different interpretation —namely that states are sceptical of the invocation of self-defence against armed attacks by non-state actors or, at the very least, that the gravity threshold for invoking such a right is much higher when non-state actors are the authors of an armed attack. Looking at the data gathered in this light, Ruys then goes on to suggest that there is nothing in theory or practice that bars the possibility of a lawful exercise of self-defence if indeed one state were intentionally to attack the embassy of another state.

Continuing our EJIL: Debate! section, Alec Stone Sweet, Wayne Sandholtz, and Mads Andenas reply to ‘Walking Back Human Rights in Europe?’ by Laurence Helfer and Erik Voeten, published in our issue 31:3. They question whether the ECtHR has actually been lowering standards of human rights protection in recent years. The authors argue that the outcomes of the High Level Conferences on the Future of the ECtHR in Brighton (2021) and Copenhagen (2018) did not pose a threat to the Court, while, on a different reading, very few judgments and dissenting opinions suggest walking back on human rights protection in favour of national governments. Laurence Helfer and Erik Voeten reply with a Rejoinder, where they argue against the criteria employed by Stone Sweet, Sandholtz and Andenas in coding ECtHR judgments as well as the narrow focus on the two High Level Conferences as instances of pushback against the Court.

Our Roaming Charges in this issue, contributed by Agata Wiącek, starkly expresses what may be an almost universal sentiment – the desire to re-enter all streets of life.  

In our Critical Review of Governance section, Fionnuala Ní Aoláin critically assesses how a range of soft law instruments have shaped counter-terrorism policy since 9/11. She then goes on to examine how human rights can figure more prominently when implementing counter-terrorism soft law.

Next is a Book Review Symposium, which offers 12 commentaries on Martti Koskenniemi’s massive new text, To the Uttermost Ends of the Earth: Legal Imagination and International Power, 1300 – 1870. To do it justice, we have assembled an eclectic and disciplinarily-diverse group of scholars to critically reflect on each chapter. The aim of these commentaries is twofold – to appreciate, through the reflections of learned specialists, the sweep and scope of what is achieved in each part of the book, and to rigorously and meaningfully probe such an ambitious scholarly opera d’arte.

Our Last Page poem in this issue brings to light the work of a 17th-century poet, philosopher and nun from New Spain (now Mexico and the American southwest). With this poem on the hypocrisy of male-female relationships, Sor Juana Inés de la Cruz may well be considered one of the original #MeToo activists.