New Issue of EJIL (Vol. 33 (2022) No. 3) Out This Week

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The latest issue of the European Journal of International Law will be published this week. Over the coming days, we will have a series of editorial posts by Sarah Nouwen, Editor-in-Chief of EJIL, and others. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue, as well as the Abstracts:

Editorial:

On My Way In III: It’s Not All About Me: Writing a Cover Letter for an Academic Position; In This Issue; In This Issue – Reviews

Articles

Michelle Staggs Kelsall, Disordering International Law

Nikolaos Voulgaris, The International Law Commission and Politics: Taking the Science Out of International Law’s Progressive Development

Jan Martin Lemnitzer, Back to the Roots: The Laws of Neutrality and the Future of Due Diligence in Cyberspace

Odile Ammann, Language Bias in International Legal Scholarship: Symptoms, Explanations, Implications and Remedies 

Ziv Bohrer and Benedikt Pirker, World War I: A Phoenix Moment in the History of International Criminal Tribunals

EJIL: Debate!

Yishai Beer, When Should a Lawful War of Self-Defence End?

Tom Ruys, In Defence of the ‘Halt and Repel’ Formula? A Reply to Yishai Beer

EJIL: Debate!

Corina Heri, Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability

Alexander Zahar, The Limits of Human Rights Law: A Reply to Corina Heri

Roaming Charges: Post-Covid Travel

Critical Review of Governance

Sarah Nimigan, Electoral Success at the ICC: A State-Level Analysis

Henok Asmelash, The Regulation of Environmentally Harmful Fossil Fuel Subsidies: From Obscurity to Prominence in the Multilateral Trading System

Book Reviews

Lauri Mälksoo. Review of Michael Riepl, Russian Contributions to International Humanitarian Law: A Contrastive Analysis of Russia’s Historical Role and Its Current Practice

Said Mahmoudi. Review of Emilia Justyna Powell, Islamic Law and International Law: Peaceful Resolution of Disputes

Christian Henderson. Review of Erika de Wet, Military Assistance on Request and the Use of Force

The Last Page

Taras Shevchenko, Заповіт (Testament, transl. John Weir)

Abstracts

Disordering International Law

Michelle Staggs Kelsall

This article examines critical approaches to liberal internationalism in international law. It argues that, despite ongoing disavowals of the liberal international legal order, most critical international lawyers are yet to let go of liberal vocabularies in order to re-imagine how order might be constituted anew. The article proposes a disordering critique of international law. Disordering international law comprises a process of reflective discernment. Through this process, norms, conventions and principles are determined with reference to a multiplicity of spatial and temporal orders and reframe any understanding of how legal order is constituted internationally. Drawing from the concept of non-duality proposed by Ratna Kapur and the writings of Justice Cançado Trindade, it then conceptualizes a disordering sensibility. Scholars embarking on international legal disordering would ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is ‘order’ determined as a result? What sequence, pattern or method am I imposing and how does that affect any characterization of ‘legal’ ordering? Whose knowledge is included, whose knowledge is excluded and why? The analysis, however, does not stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? The return to practice provides a path towards change, which the article argues is urgently needed. I commence with some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames.

The International Law Commission and Politics: Taking the Science Out of International Law’s Progressive Development

Nikolaos Voulgaris

The idea that jurists have a vocational duty to progressively develop the law finds its way in international law chiefly via the mission statement of the United Nations’ International Law Commission (ILC). Mandated by states to codify and progressively develop international law, the ILC’s modern practice has merged these two distinct exercises. The commission utilizes a common working procedure for the elaboration of both and appears to perceive progressive development as an appurtenance of codification. What is more, progressive development has often been equated by the ILC with lex ferenda propositions and policy considerations. It is little wonder then that the ILC has never attempted to meaningfully analyse this aspect of its mandate. This article examines progressive development from a methodological standpoint and maintains that it is an exercise with self-standing importance. It argues that there are two ways to understand the ILC’s mandate to progressively develop the law: either as ‘progressive development stricto sensu’ or as ‘legislation’. The difference between the two is methodological; ‘progressive development stricto sensu’ is elaborated via an inductive methodology and principally justified by legal considerations. On the other side, in the case of ‘legislation’, provisions are principally justified by policy considerations and, hence, imbued with uncertainty regarding their methodological foundations. The article suggests that ‘progressive development stricto sensu’ falls squarely within the ILC’s legal mandate, while this will be the case with respect to ‘legislation’ only when the ILC is conscious of the question it sets out to answer and the requisite methodology that it employs to do so. To this end, the article lays down some basic methodological principles that the ILC should adhere to when engaging with topics of work where political considerations play a significant role in the development of the law. Finally, it calls for a revival of the forgotten discussion regarding the ILC’s capacity to develop international law.

Back to the Roots: The Laws of Neutrality and the Future of Due Diligence in Cyberspace

Jan Martin Lemnitzer

The question of whether the due diligence rule applies in cyberspace has become a key issue in the cyber norms debate. Yet there is no consensus whether the rule is binding, and states lack clear guidance on what the norm requires them to do. This is not just unfortunate but also dangerous since a crisis caused by a cyber attack routed through a third state where the victim state and the third state have fundamentally different views as to which duties apply carries a serious escalation risk. While scholars have suggested adapting legal approaches from other successful due diligence regimes, these rules are not a good match for the crucial issue in cyber due diligence: what do states need to do to ensure that no state is attacked using their networks. This article suggests going back to the roots and implementing principles derived from the laws of neutrality, the field that originally brought the due diligence principle into international law. Designed to manage escalation risk at the fringes of international conflict, it is our best guide through the grey zone of due diligence in cyberspace. The classic cases such as Alabama and Corfu Channel were disputes related to armed conflicts but between states that were at peace with each other. Read closely, they offer clear guidance on how to develop a flexible, but reliable, due diligence standard for cyberspace that will help states manage expectations of responsible behaviour and thereby defuse future potential conflicts before they arise, while avoiding the need to formally attribute the original attack. The final section will seek to consolidate the historical, legal as well as technological developments discussed here to lay out what the due diligence rule in cyberspace is likely to look like soon.

Language Bias in International Legal Scholarship: Symptoms, Explanations, Implications and Remedies

Odile Ammann

In her much-acclaimed book published in 2017, Anthea Roberts examines whether international law is indeed international. The answer to this question is ‘no’, one reason being the deep language biases that pervade international legal scholarship. One of the clearest symptoms of this distortion is the unprecedented dominance of English. While such a lingua franca has numerous advantages, it is connected to significant drawbacks. In this article, I first define what I mean by language bias in international legal scholarship before highlighting some of its symptoms. I then show that language bias is an underexplored topic in international legal scholarship and that this lack of engagement with the issue warrants further analysis. Next, I identify possible explanations for language bias, and I delineate its main implications for international legal scholarship and international law-making. Finally, I examine various strategies that can be pursued to minimize the negative consequences of language bias. While there are no easy answers, this article is a first attempt at highlighting the problematic effects of language bias on international legal scholarship, at outlining several strategies for tackling these effects and, importantly, at generating a scholarly debate on the dangers of language bias for the international, legal and scholarly character of our research.

World War I: A Phoenix Moment in the History of International Criminal Tribunals

Ziv Bohrer and Benedikt Pirker

The post-World War II International Military Tribunal at Nuremberg is commonly considered the first-ever international criminal tribunal. It is also often argued that the very idea of an international criminal tribunal emerged after World War I, when the first plans for such a tribunal were drawn up. This article, however, presents a very different account. It shows that international criminal tribunals did not have to wait for their conception until after World War I; nor did they come into being after World War II – they already operated during World War I and the preceding century. The article also demonstrates that the existence of such tribunals did influence the participants of the Paris Peace Conference, even though they portrayed them as novel.

When Should a Lawful War of Self-Defence End?

Yishai Beer

Though the UN Charter regulates the starting point of lawful self-defence, neither it nor customary law determines its lawful end. This article tries to draw the contours of such lawfulness based on the ad bellum necessity rule. Under the prevailing law, the aggressor may gain control over ending the lawful war. Usually, whenever it stops its aggression and is willing to retreat, the assumption is that this brings the emergency situation to an end and negates the victim’s temporary and exceptional right to fight. Contrarily, this article suggests that the keys to ending a war should mainly be left to the victim, who must present a convincing case that it has ended its self-defence at the first reasonable opportunity, according to its geostrategic considerations.

In Defence of the ‘Halt and Repel’ Formula? A Reply to Yishai Beer

Tom Ruys

In ‘When Should a Lawful War of Self-Defence End?’, Yishai Beer zooms in on the scenario where a state engaged in an act of aggression subsequently retreats from the victim state’s territory. In particular, Beer challenges the idea that such behaviour terminates the victim state’s right of self-defence since the key to ending a war should not be left to the aggressor. While the article is a welcome and thought-provoking addition to the debate, this reply questions the wisdom of abandoning the default ‘halt-and-repel’ approach to the termination of self-defence.

Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability

Corina Heri

Human rights law is increasingly being mobilized to litigate against the effects of anthropogenic climate change. This now includes proceedings before the European Court of Human Rights, which is currently considering its first five climate cases. The present article contends that an examination of climate change as a human rights issue by the Strasbourg Court, although requiring transformations of existing case law, is not only possible but also normatively desirable. It does so while examining two interlinked topics that could prove crucial to this type of case. The first is the assessment of risk – that is, the ability of the European Convention on Human Rights (ECHR) to capture impending harms through the doctrine of positive obligations. Second, the article frames climate claims as a matter for Article 3 of the ECHR on the prohibition of torture and inhuman and degrading treatment. This right has gone largely ignored in the relevant scholarship and the Court’s environmental cases to date. The resulting discussion of positive climatic obligations is interlinked with a discussion of climate-related vulnerabilities, which could potentially shape state obligations and lower the procedural and substantive hurdles that imperil the success of climate cases before the Court.

The Limits of Human Rights Law: A Reply to Corina Heri

Alexander Zahar

In this reply to Corina Heri, I argue that her article confuses human rights violations associated with the impacts of climate change with a putative class of violations going to the causation of climate change. Because the latter class has no prospect of being realized, the scope of Heri’s argument is much narrower than she makes out. Human rights law is limited to impact cases. It adds nothing to climate change mitigation law.

Electoral Success at the ICC: A State-Level Analysis

Sarah Nimigan

This article seeks to understand why some candidates are elected to the International Criminal Court (ICC) bench, while others are not, using a state-level analysis between the years 2003 to 2020. Two interrelated analyses are used. The first measures the levels of judicial representativeness based on geography, gender, and expertise. This provides a conceptualization of ‘electoral success’ that is then situated within state-level judicial nomination processes to better understand the level of judicial representation on the ICC bench by state. The overall argument is that three types of states have had the most judicial electoral success at the ICC: (i) states that have contributed the most financially to the Court; (ii) states that have allocated the necessary amount of human resources to ensure that their candidates were successfully elected, especially in the form of vote trading and diplomatic lobbying and (iii) states where the ICC is, or has been, involved in an investigation. The problem of politicization at both the domestic and international level(s) permeates the analysis herein.

The Regulation of Environmentally Harmful Fossil Fuel Subsidies: From Obscurity to Prominence in the Multilateral Trading System

Henok Asmelash

Environmentally harmful fossil fuel subsidies were notably absent from efforts to enhance the mutual supportiveness of trade and environment in the multilateral trading system. However, a combination of factors has recently propelled the regulation of such subsidies up the trade and environment agenda. The recently launched initiative to negotiate a plurilateral Agreement on Climate Change, Trade and Sustainability (ACCTS) represents the latest and most ambitious of the growing number of initiatives to discipline fossil fuel subsidies. This article examines the factors that brought the regulation of fossil fuel subsidies to prominence and the prospects of the ACCTS initiative to introduce binding rules on fossil fuel subsidies. The article argues that such an initiative is long overdue, but it faces significant hurdles to succeed. Drawing on past and present intergovernmental initiatives to tackle environmentally harmful subsidies, the article highlights the key challenges on the road ahead and suggests possible ways forward.

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