New Issue of EJIL (Vol. 34 (2023) No. 3) – Out Next Week

The latest issue of the European Journal of International Law will be published next week.  The Editorial from this issue can also be read here. Over the coming days, we will publish two posts outlining the contents of this issue.

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

Editorial: Open Access: No Closed Matter; In This Issue; In This Issue – Reviews  

 Articles

Stewart Manley, Pardis Moslemzadeh Tehrani and Rajah Rasiah, The (Non-)Use of African Law by the International Criminal Court

Helga Molbæk-Steensig and Alexandre Quemy, Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights

Gus Waschefort, The Alchemy of the Right to Life during the Conduct of Hostilities: A Normative Approach to Operationalizing the ‘Supreme Right’

Roaming Charges: Places with a Soul

Salon

EJIL: Debate!

Margaretha Wewerinke-Singh, Ayan Garg and Shubhangi Agarwalla, In Defence of Future Generations: A Reply to Stephen Humphreys

Peter Lawrence, International Law Must Respond to the Reality of Future Generations: A Reply to Stephen Humphreys

Stephen Humphreys, Taking Future Generations Seriously, A Rejoinder to Margaretha Wewerinke-Singh, Ayan Garg and Shubhangi Agarwalla, and Peter Lawrence

Critical Review of Governance

Lena Riecke, Unmasking the Term ‘Dual Use’ in EU Spyware Export Control

Book Reviews

Diane Desierto, Review of Tom Ginsburg, Democracies and International Law

Tom Ruys, Review of Agatha Verdebout. Rewriting Histories of the Use of Force. The Narrative of ‘Indifference’

Ramona Vijeyarasa, Review of Ruth Rubio-Marín, Global Gender Constitutionalism and Women’s Citizenship

Chris Whomersley, Review of Stefan Talmon (ed.), German Practice in International Law

Cecily Rose, Review of Fulvia Staiano, Transnational Organized Crime: Challenging International Law Principles on State Jurisdiction

The Last Page

Else Lasker-Schüler (transl. Franziska Wolf), Nachklänge/Echoes

ABSTRACTS

Stewart Manley, Pardis Moslemzadeh Tehrani and Rajah Rasiah, The (Non-)Use of African Law by the International Criminal Court

All defendants before the International Criminal Court (ICC) to date have been African, with their alleged crimes having been committed, at least partly, on African soil. When turning to national laws to resolve issues of interpretation in these cases, should the ICC see whether it can use laws of the African state in which the crime occurred? This article argues that it should but observes – from a dataset of 16,192 citations containing over 200 citations to national laws – that it rarely does. Instead, it turns much more often to Western European and US laws. This phenomenon, the article suggests, troublingly reflects and perpetuates the marginalization of African and other global South laws from what constitutes international law. The article also argues that the Rome Statute requires the ICC to at least examine for appropriateness the laws of a subset of these neglected systems (‘the national laws of States that would normally exercise jurisdiction over the crime’) when identifying general principles of law. There are several compelling reasons to extend this examination requirement to African and other global South country laws more broadly, and even when not dealing with general principles of law, and few reasons not to.

Helga Molbæk-Steensig and Alexandre Quemy, Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights

Judges should be impartial and independent, judging based solely on the law. Current constitutional literature suggests an important factor in securing this may be the length of tenure. The assumption is that judges with non-renewable terms are more independent than judges with renewable terms since they do not have to worry about reappointment, but proving this assumption empirically is not straightforward. Obstacles include difficulties in comparing different courts and the fact that there is often no obvious case outcome that proves independence. This article aims to overcome these obstacles with a mixed-methods study on the European Court of Human Rights during a time when the tenure rules changed. The study goes beyond the counting of votes and analyses the arguments used in separate opinions as indicators of independence. Our main findings are that, after the introduction of non-renewable terms, judges write more opinions overall, and more of them criticize the judges’ appointing states, while fewer defend it. We also find that judges on non-renewable terms are on average more likely to write opinions addressing violations as systemic problems and to use their opinions to provide guidance for their appointing states on implementing judgments and improving human rights protection.

Gus Waschefort, The Alchemy of the Right to Life during the Conduct of Hostilities: A Normative Approach to Operationalizing the ‘Supreme Right’

The prevailing approach to the application of the right to life during the conduct of hostilities holds that the arbitrariness of loss of life in terms of international human rights law (IHRL) is determined by compliance with international humanitarian law (IHL). Through application of the interpretive principle of systemic integration, an alternative ‘normative approach’ is advanced. The normative approach is premised on a contextual consideration of the normative content and underlying values of the right to life rather than on the more mechanical approaches to its interpretation. The outcome reached that is based on this approach has two profound distinctions to that of the prevailing approach: (i) not all loss of life where IHL was not strictly complied with is ipso jure arbitrary and, conversely, (ii) at times, compelling factors necessitate a recalibration of arbitrariness along a spectrum between IHRL and IHL, with the result that loss of life may amount to arbitrary deprivation of life even when IHL is fully complied with. In the context of quintessential military operations, a two-pronged normative test is advanced to determine the circumstances in which non-compliance with IHL will result in arbitrary deprivation of life.

Margaretha Wewerinke-Singh, Ayan Garg and Shubhangi Agarwalla, In Defence of Future Generations: A Reply to Stephen Humphreys

In this reply to Stephen Humphreys, we challenge the dismissal of future generations as a locus of responsibility for present generations. Drawing from diverse sources such as indigenous law, environmental jurisprudence and practice, we demonstrate that global discourse on intergenerationality is broader and more nuanced than Humphreys suggests. Our response highlights the importance of incorporating diverse perspectives to enrich discourse and promote an inclusive approach to the progressive development of international law. Further, we contend that ‘future generations’ discourse has emancipatory power, offering potential for reshaping international law based on a vision of justice and solidarity across time and space. We call for increased dialogue and collaboration among scholars, practitioners and frontline communities to ensure that future generations discourse remains grounded in real-world experiences. By persistently interrogating and developing our understanding of responsibilities owed to future generations, we can imagine and cultivate a more inclusive – and, hence, more promising – approach to addressing climate change and related global crises.

Peter Lawrence, International Law Must Respond to the Reality of Future Generations: A Reply to Stephen Humphreys

Stephen Humphreys’ in his article ‘Against Future Generations’ in this journal argues against intergenerational framings in the climate context, claiming that such framings work against future generations by carrying forward today’s structural inequalities into the future. He contends that those using such framings tend to subordinate global intra-generational equity to local intergenerational equity, glossing over very significant differences in power and wealth amongst those impacted by climate change. This response to Humphreys’ article argues that Humphreys has set up a false dichotomy: it is not only developed countries that care about future generations – developing countries are concerned about addressing poverty now and  their own future generations. Humphreys’ claim that climate litigation has and should limit itself to harms to persons alive now is also unconvincing. Most climate litigation involving children or young people to date has included claims brought by them in relation both to their own interests (now and in the future) and on behalf of future generations. The response points to cases where, contrary to Humphreys’ position – harms extending to future generations has made a substantive difference in legal outcomes.

Lena Riecke, Unmasking the Term ‘Dual Use’ in EU Spyware Export Control

Spyware has been heralded as an essential tool for law enforcement and intelligence operations. However, examples abound of states that use it in a manner that violates human rights as well as undermines democracy and the rule of law. Against this backdrop, the European Union (EU) Dual-use Regulation was recast in 2021. It now makes an effort to control the export of cyber surveillance technologies, including spyware, which it defines as dual use. What narrative is created by framing spyware as ‘dual use’? This article illustrates how the term dual use roots in a distinction between ‘peaceful’ and ‘non-peaceful’, or ‘civil’ and ‘military’ uses, and has gradually become associated with a broader dichotomy between ‘legitimate’ and ‘illegitimate’ purposes. Historically, this duality served not only to articulate the risks posed by certain technologies and indicate the rationale for their export control but also to justify their trade. Yet recourse by EU actors to dual use tilts the EU discourse on spyware export control towards state-centric security considerations and commercial interests over human rights. Unmasking how the term transposes a conceptually flawed, deceptive and empty duality to the spyware context, this article shows that the very concept of dual use may undermine human rights safeguards in spyware export control.