New Issue of EJIL (Vol. 33 (2022) No. 4) Out This Week

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:

EJIL Roll of Honour; 2022 EJIL Peer Reviewer Prize; Desk Rejections; 10 Good Reads; In This Issue; In This Issue – Reviews 

Letters to the Editors

Nicolás M. Perrone, How Corporations Shape International Economic Law

Articles

Stephen Humphreys, Against Future Generations

Abhimanyu George Jain, International law and the Regulation of Autonomous Military Capabilities 

Nasia Hadjigeorgiou, Decolonizing Cyprus 60 Years after Independence: An Assessment of the Legality of the Sovereign Base Areas

Focus on International Investment Law

Taylor St John and Anthea Roberts, The Originality of Outsiders: Innovation in the Investment Treaty System 

Ingo Venzke and Philipp Günther, International Investment Protection Made in Germany? On the Domestic and Foreign Policy Dynamics Behind the First BITs 

Roaming Charges: Rules We Like

Critical Review of Jurisprudence

Michelle Burgis-Kasthala, Time for Justice? Reading the Tragedy of International Criminal Justice in Lebanon

 Critical Review of Governance

Natalie R. Davidson and Tamar Hostovsky Brandes, Israeli Courts and the Paradox of International Human Rights Law

Legal/Illegal

Kristen Eichensehr, Not Illegal: The SolarWinds Incident and International Law

Antonio Coco, Talita Dias, and Tsvetelina van Benthem, Illegal: The SolarWinds Hack under International Law

 Review Essays

Ríán Derrig, What Can a Few Make of Mankind? Review of Harlan Grant Cohen and Timothy Meyer (eds). International Law as Behavior

Benoit Mayer, The Pitfalls of Ineffective Conceptualization: The Case of the Distinction between Procedure and Substance. Review of Nina Le Bonniec. La procéduralis­ation des droits substantiels par la Cour européenne des droits de l‘homme : Réflexion sur le contrôle juridictionnel du respect des droits garantis par la Convention européenne des droits de l‘homme; Ioannis Prezas (ed.). Substance et procédure en droit international public. Dialectique et influences croisées; Jutta Brunnée. Procedure and Substance in International Environmental Law

Book Reviews

Andrej Lang. Review of Gráinne de Búrca. Reframing Human Rights in a Turbulent Era

 The Last Page

Emily Dickinson, 739.  I Many Times Thought Peace had Come

 ABSTRACTS

Against ‘Future Generations’

Stephen Humphreys

Future generations are invoked in the United Nations Framework Convention on Climate Change, and, increasingly, often in climate debate, as a locus of responsibility for present generations. In this article, I argue against this framing. I look at the historical context and rhetorical effects of a generational framing for both present and future generations, dwelling in particular on guiding conceptions of sacrifice and legacy as well as on the construction of future scenarios and the practice of future discounting. I conclude that the appeal to future generations obfuscates, rendering a series of critical boundaries diffuse and, in doing so, abjures concrete urgent existing responsibilities towards those alive today in the same gesture that nominally assumes them for an abstract unformed future.

International Law and the Regulation of Autonomous Military Capabilities

Abhimanyu George Jain

There is a dissonance between principled consensus and operational dissensus in the emerging regulatory framework for autonomous military capabilities (AMCs). This framework is based on the application of international humanitarian law (IHL) and the maintenance of human control and responsibility, but it remains unclear whether and how IHL might apply to AMCs and how human control and responsibility can be maintained. The emergence of a regulatory framework in the face of this dissonance raises questions about how alternative regulatory possibilities have been excluded and how the possibility of regulation has been assumed. This article explores the mechanics of this exclusion and assumption. It sheds light on the conditions of possibilities and trajectories of development of the regulatory regime for AMCs, and also provides insights into international regulatory frameworks more broadly, especially in relation to new technologies. Using the example of the everywhere-forever war on terror, this article points to the role of a failure of politics and a consequently amorphous and expanding ideal of security in excluding the possibility of prohibition or restrictive regulation of the military promise of AMCs. The article then turns to four discursive strategies that sustain the assumption that AMCs are amenable to regulation. Through conflation, different types of AMCs are subsumed within an imaginary that is more easily accommodated within the regulatory consensus. Deferral creates a façade of consensus while shifting contentious issues to the national sphere. Normalization operates to de-emphasize the novelty of AMCs, while valorization pulls in the opposite direction by exaggerating the virtues of AMCs.

Decolonizing Cyprus 60 Years after Independence: An Assessment of the Legality of the Sovereign Base Areas

Nasia Hadjigeorgiou

The Sovereign Base Areas (SBA) are two parts on the island of Cyprus, with a combined territory of 99 square miles, over which the United Kingdom exercises sovereignty. They were created by the Treaty of Establishment 1960, which is also the international agreement that granted the Republic of Cyprus its independence. This article maps out the implications of the Chagos Archipelago advisory opinion for the SBA. It argues that the process through which they were created disregarded the wishes of the Cypriot people and, therefore, was not in accordance with the right to self-determination.

The Originality of Outsiders: Innovation in the Investment Treaty System

Anthea Roberts and Taylor St John

In recent years, several proposals by states to reform or displace investor-state dispute settlement (ISDS) have gained prominence. While many factors shape which reform proposals states support, here we focus on one important, but often overlooked, factor: the ‘insider’ or ‘outsider’ status of the government officials who formulate states’ proposals. Based on five years of para-ethnographic observation and interviews with officials involved in ISDS reform, and informed by the interdisciplinary innovation literature, we explore how individuals who have not spent their careers within the field of investment arbitration (and are perceived as ‘outsiders’ by those within that field) have developed more disruptive reform proposals while arbitral insiders have typically proposed sustaining reforms. We illuminate these dynamics in the ISDS reform debates with case studies of four actors: the USA, the European Union, Bahrain and Brazil.

International Investment Protection Made in Germany? On the Domestic and Foreign Policy Dynamics behind the First BITs

Ingo Venzke and Philipp Günther

The investment protection treaty concluded between Germany and Pakistan in 1959 is generally regarded as a milestone in the development of international investment law. It has entered the collective memory as the first bilateral investment treaty (BIT). In this article, we analyse archival sources to investigate why Germany and Pakistan concluded this agreement at that specific time and what makes this treaty the first of its kind. Through historical analysis, we trace the domestic and related foreign policies that led to the BIT and discuss the negotiation process. Our analysis shows that the BIT was so closely linked with the German federal investment guarantee scheme (Bundesgarantien) that it is best understood as an extension of that policy. This also helps us to specify the underlying rationale for the treaties. We further highlight the influence of the financial industry – especially of Hermann Josef Abs – on the genesis of the BIT, which was less decisive than is often suggested. We identify features of the 1959 BIT that do characterize it as a new international legal instrument, but nuance claims about its degree of innovation as well as underlying motivations, and counter considerable retrospective myth making.

Time for Justice? Reflections on Narrative Absences and Presences in the Special Tribunal for Lebanon’s Ayyash Decision

Michelle Burgis-Kasthala

After a tumultuous inception and drawn out in absentia trial, the Trial Chamber of the Special Tribunal for Lebanon finally handed down its key judgment in August 2020. This article offers a critical appraisal of the tribunal and the decision, first, by situating the finding within Lebanon’s political context and, second, by adopting a close narrative reading of the text itself. It argues that the judgment is structured around a series of presences and absences that build the Chamber’s narrative about post-civil war Lebanon and its need for justice. The article suggests that, while the Chamber succeeds in convicting one of the co-accused for his role in the terrorist conspiracy to assassinate Rafiq Hariri, it fails to produce a convincing narrative about the role of international criminal justice in the fractured polity of modern Lebanon.

Israeli Courts and the Paradox of International Human Rights Law

Natalie R. Davidson and Tamar Hostovsky Brandes

This article offers the first comprehensive mapping of the place of international human rights law (IHRL) in Israeli case law. It explores how Israeli courts use IHRL, based on quantitative and qualitative content analysis of all decisions, in all courts, referring to IHRL between 1990 and 2019. It reveals that Israeli courts mobilize IHRL predominantly with respect to children’s rights and due process, seldom invoking IHRL in relation to ethnic and gender equality. It further shows that a significant portion of references to IHRL serve to justify state action. We discuss possible explanations for these patterns of use of IHRL and argue that, overall, these findings illustrate the paradox of IHRL being amenable to both uses that are emancipatory and protective of power.

Not Illegal: The SolarWinds Incident and International Law

Kristen E. Eichensehr

In 2021, the USA and other governments formally blamed Russia for a wide-ranging hacking campaign that breached the update process for SolarWinds Orion network monitoring software and used that access to compromise numerous government agencies, companies and other entities. Despite denouncing Russia’s cyber espionage and imposing sanctions, the USA did not call Russia’s actions illegal as a matter of international law – and for good reason. Based on the publicly available facts, this article argues that the SolarWinds incident likely did not run afoul of international law as it currently stands. The article considers the prohibitions on the use of force and intervention, emerging rules with respect to violations of sovereignty and due diligence, and international human rights law, and it concludes with some reflections on the role of states and scholars in decisions about whether to close gaps in international law.

Illegal: The SolarWinds Hack under International Law

Antonio Coco, Talita Dias, and Tsvetelina van Benthem

In late 2020, news surfaced about one of the most extensive attacks on an information technology (IT) supply chain to date. Hackers exploited a vulnerability in the update system of Orion, a network-monitoring and management software developed by the company SolarWinds. Malicious code embedded in Orion updates created a backdoor into the systems used by numerous private and public entities. This backdoor was then used to insert additional malware into affected systems – in particular, spyware to exfiltrate confidential or sensitive data. Considering both the importance of preserving the integrity of IT supply chains and the diverse risks of harm that attacks such as the SolarWinds hack give rise to, this article examines this cyber operation according to the relevant rules of international law – notably those on sovereignty, non-intervention, general due diligence duties and international human rights law. It concludes that the operation may have been illegal on multiple fronts.

What Can a Few Make of Mankind? Review of Harlan Grant Cohen and Timothy Meyer (eds). International Law as Behavior

Ríán Derrig

Harlan Grant Cohen and Timothy Meyer present International Law as Behavior as a collection that aspires to exemplify and set an agenda for an interdisciplinary movement of scholars studying the ‘behavioral roots of international law’. This review essay places the book within a larger context of interactions between behavioural psychology and social sciences. Identifying the origins of contemporary behavioural international law scholarship in behavioural economics, and especially the 1970s work of the psychologists Amos Tversky and Daniel Kahneman, this essay questions the plausibility of the model of human motivation theorized in International Law as Behavior. Moreover, detailed analysis of the consequences of explaining international law phenomena using behavioural concepts demonstrates that responsibility is systematically under-attributed to the powerful and over-attributed to the vulnerable. Ultimately, this essay contends that viewing legal and social phenomena through behavioural psychology offers little explanatory power, while inuring us to a condition of passivity and control, seeking to replace politics with technique.

The Pitfalls of Ineffective Conceptualization: The Case of the Distinction between Procedure and Substance. Review of Nina Le Bonniec. La procéduralisation des droits substantiels par la Cour européenne des droits de l‘homme; Ioannis Prezas (ed.). Substance et procédure en droit international public; Jutta Brunnée. Procedure and Substance in International Environmental Law

Benoit Mayer

This review essay explores the distinction that judges and scholars have occasionally made between legal norms that they consider to be procedural and those considered to be substantive in nature. Approaching the issue from different angles, the three books under review all struggle to define procedure and substance as concepts informing a decontextualized distinction among international norms. Overall, they fail to show how this distinction is useful, either to understand what the law is or to account for its evolution. The essay argues that the concepts of ‘procedure’ and ‘substance’ hinder the clarity and, often, the soundness of the analysis presented in these books. At times, this ineffective conceptualization is an intellectual detour that hinders the development of more useful distinctions – for instance, between ‘principal’ and ‘accessory’ obligations – to determine when the breach of an obligation implies the breach of another obligation. Through this case study focused on recent publications on the distinction between procedure and substance, this essay reflects on the capacity of ineffective concepts to hinder the analysis of international law when their relevance and usefulness is too readily taken for granted.