In this Issue

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The Articles section of this issue opens with an empirical study by Laurence Helfer and Erik Voeten, which identifies – through an analysis of minority opinions – an increase in European Court of Human Rights judgments that implicitly overturn prior progressive judgments. The authors suggest that these judgments represent a response to the populist backlash against human rights. In the next article, Ríán Derrig revisits the work of the ‘New Haven School’ of policy-oriented jurisprudence. Using previously unexploited archival materials, Derrig challenges common assumptions regarding the historical background and intellectual origins of this school of thought. Thereafter, Rémi Bachand uses Marxist theory to shed new light on the causes underlying the current crisis of the WTO’s Dispute Settlement Body. His analysis casts doubt on common explanations for this crisis, and suggests instead that it has to do with the inherent contradictions of neoliberalism and the role of the WTO as guarantor of the neoliberal order. The section concludes with Merijn Chamon’s analysis of the contribution of the EU’s practice of provisional application of treaties to international law.

The issue continues with a Focus on Foreign Cyberattacks against Civilians. Joel Trachtman explores the possibility of using export controls on intrusion software as a means to limit the cyberattack capacities of foreign states. He suggests adopting a ‘dissemination control’ approach, which will permit greater protection with less disruption of desirable software development. Nicholas Tsagourias addresses the problem of attributing malicious cyber activities to states, which stems from the involvement of non-state actors in cyberattacks and from the high legal standards needed for attribution. He proposes ways to close these responsibility gaps and hold states accountable for their cyber operations. Duncan Hollis and Martha Finnemore discuss a related gap in state responsibility for cyberattacks. They observe that the naming of a state as being involved in a cyberattack does not always lead to shaming, and suggest a new model of accusation.

Our EJIL: Exchange! section juxtaposes two historiographic perspectives. Henri de Waele presents a historical account of the professionalization of international law scholarship and practice in the Netherlands during the 1920s and 1930s. This professionalization manifested itself, among other things, in the academic recognition of international law as a self-standing field, as well as in a growing public interest in the views of international lawyers. Janne Nijman offers a critical engagement with De Waele’s article, calling for a more critical historiographical approach. Rather than reproducing traditional historiography, she emphasizes the need to raise ‘the woman question’ and the ‘the colonial question’ in any discussion of the professionalization of international law.

Janne Nijman also contributed the image for Our Roaming Charges in this issue: the 2009 painting by Kerry James Marshall may be seen as a visual-art illustration of the critical historiographic approach propagated by Nijman. The painting forms part of a series of works that introduces Black figures – in this case a Black woman – into classical images of Western pictorial tradition, thereby creating what Marshall defines as a ‘counter-archive’ of art-historical images.

In the EJIL: Debate! in this issue, Ardi Imseis criticizes the United Nations’ treatment of the prolonged Israeli occupation of the Palestinian Territories. He argues that rather than focusing on discrete violations of humanitarian and human rights law, the UN should acknowledge that this occupation violates jus cogens norms and is therefore illegal per se. Accordingly, the UN should require Israel to terminate the occupation without negotiation. David Hughes replies to Imseis by suggesting that the requirement to terminate the occupation should be based not on ‘external’ jus cogens norms, but rather on the law of occupation itself. He also argues that the UN can and should call for a negotiated agreement between Israel and the Palestinians without legitimizing the occupation or undermining the obligation to terminate it.

Sara Hagemann closes our occasional Changing the Guards series with a commentary on the achievements of the former President of the European Council, Donald Tusk.

With two review essays and five book reviews, this issue is rich in reviews (though there is more to come – wait for the next issue…). Not overly present in our most recent issues, international criminal law returns here with a vengeance: Patryk I. Labuda’s review essay takes stock of the International Criminal Tribunal for Rwanda, and does so through the prism of four books that assess the Tribunal’s legacy after 25 years. Sophie Rigney continues the reflection on the impact of international criminal justice on African politics in her review of Distant Justice. Alexandre Skander Galand reviews a work of different size and style, viz. the commentary on the crime of aggression edited by Claus Kreß and Stefan Barriga. In addition to highlighting six significant additions to the literature, the three reviews provide a snapshot of the current state of the international criminal justice project.

Not all is ICL, though. This issue also features reviews on aspects of international economic law and dispute settlement. Financial nationalism (and ways of curbing it) is the theme of Federico Lupo-Pasini’s recent monograph, addressed in a review essay by Leonardo Borlini. Ntina Tzouvala reviews World Trade and Investment Law Reimagined and sees in it ‘a first step for us to challenge what is thinkable in international economic law circles’.  Jarrod Hepburn is impressed with the careful argument put forward in Daniel Peat’s Comparative Reasoning in International Courts and Tribunals, which was recently awarded the ESIL Book Prize, but identifies five areas in which ‘the book holds back where more might be wanted’. Ingo Venzke, too, is impressed: he finds a lot to agree with in Anne Saab’s Narratives of Hunger, one of a series of recent monographs on international law and global hunger, mankind’s real scourge; but is concerned that the book ‘overstates international law’s narrative force’.  Seven exciting reviews, then, all of them worth your time!

Finally, The Last Page in this issue presents two poems of an unusual nature and genesis. Valentin Jeutner applied the techniques of linguistic conceptual art to corpora of international law to create ‘Elements of International Law’ and ‘Sir David Maxwell Fyfe’. He explains that for the first poem, all the judgments of the International Court of Justice were combined into one file and a corpus management software was instructed to search for combinations of references to the four elements (earth, sea, air, fire) and verbs to the element’s immediate right. The results were selectively shortened and listed in order of their appearance in the corpus. For the second poem, the 42 volumes of the official records of the International Military Tribunal at Nuremberg were merged into one file and the software was used to identify the text’s most common four-word combinations beginning with ‘I’. The list of results was then sorted by frequency. The result reveals individuals who are searching.

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