In This Issue

This issue of EJIL opens with a call to disorder international law. Michelle Staggs Kelsall invites international lawyers to let go of liberal vocabularies and reframe how the international legal order is constituted by conceiving of norms, conventions and principles with reference to a multiplicity of spatial and temporal orders. The next article, by contrast, aims to bring some orderliness to the International Law Commission’s mandate to progressively develop international law. Nikolaos Voulgaris distinguishes between progressive development stricto sensu and legislation, on the basis of the different methodologies employed by the Commission. His article also proposes principles that should guide the work of the Commission when topics of special political sensitivity are at stake. The section then moves from Geneva’s Palais des Nations to virtual infrastructures. Jan Lemnitzer argues that due diligence applies in cyberspace, with third states having a duty not to allow their networks to be used for cyberattacks. Lemnitzer looks to the laws of neutrality, the Alabama award, and the Corfu Channel judgment, as providing the necessary guidance for what is commonly perceived to be a grey area of modern conflict. The following article proposes an inward turn for international lawyers. Odile Ammann examines the dominance of English as the lingua franca of international legal scholarship. Ammann expands on the reasons and implications of this language bias, before advancing a number of strategies that international lawyers can pursue to mitigate its negative effects. The Articles section closes with a look at dominant narratives of the history of international criminal justice. Ziv Bohrer and Benedikt Pirker challenge conventional accounts that portray the International Military Tribunal at Nuremberg as the first ever international criminal tribunal. Bohrer and Pirker map earlier experiments and argue that pinning the origins of international criminal justice to 1945 or 1919 reflects disremembrance efforts that seek to present contemporary proposals as unprecedented developments.

This issue continues with two EJIL: Debates! The first one begins with Yishai Beer’s conundrum: when does a right to self-defence end? Beer suggests that the victim state must stop fighting when resort to force is no longer necessary, although this carries the burden of presenting a convincing case that its self-defence terminated at the first reasonable opportunity. Tom Ruys, replying to Beer, advocates for the maintenance of the ‘halt and repel’ doctrine as the prevailing approach, which, in his view, Beer reads too narrowly and fails to displace persuasively. According to Ruys, Beer’s proposed criteria lend themselves to vaguer, more indeterminate readings and abuse by states.

In the second EJIL:Debate! of this issue, Corina Heri contends that the European Court of Human Rights ought to take the opportunity of recent applications to rule on the human rights impact of climate change. Heri argues that the doctrine of positive obligations is apt to capture the risk of impending harm involved in such cases and that the impact of climate change can be framed as ill-treatment under Article 3, both moves having the potential of ‘greening’ the Convention.  For Alexander Zahar, the road to hell is paved with good intentions. In his reply to Heri, Zahar warns against a conflation of adaptation and mitigation questions. Simply because the European Court of Human Rights has decided on adaptation matters, he argues, it does not follow that it can also adjudge on mitigation.

Our Roaming Charges image in this issue points to one of the many lingering side-effects of the Covid pandemic – chaotic air travel.

The issue ends with two contributions in the Critical Review of Governance rubric. Sarah Nimigan argues that electoral success at the International Criminal Court hinges on nominating states’ relative weight in financial contributions to the Court, the human resources expended in campaigning (including vote trading and diplomatic lobbying), and whether the nominating state has been the subject of an ICC investigation. Henok Asmelash highlights the challenges and possible ways forward of the regulation of fossil fuel subsidies with a focus on the recent plurilateral initiative for an Agreement on Climate Change, Trade and Sustainability under the auspices of the World Trade Organization.

We close with a Last Page poem by the 19th-century Ukrainian poet, Taras Shevchenko, translated by John Weir.