{"title":"Rewriting Histories of the Use of Force: The Narrative of ‘Indifference’.","authors":"T. Ruys","doi":"10.1093/ejil/chad043","DOIUrl":"https://doi.org/10.1093/ejil/chad043","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42389170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Taking Future Generations Seriously: A Rejoinder to Margaretha Wewerinke-Singh, Ayan Garg and Shubhangi Agarwalla; and Peter Lawrence","authors":"S. Humphreys","doi":"10.1093/ejil/chad044","DOIUrl":"https://doi.org/10.1093/ejil/chad044","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41337102","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights","authors":"Helga Molbæk-Steensig, Alexandre Quemy","doi":"10.1093/ejil/chad036","DOIUrl":"https://doi.org/10.1093/ejil/chad036","url":null,"abstract":"\u0000 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.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42394681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
M. Wewerinke‐Singh, Ayan Garg, Shubhangi Agarwalla
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.
{"title":"In Defence of Future Generations: A Reply to Stephen Humphreys","authors":"M. Wewerinke‐Singh, Ayan Garg, Shubhangi Agarwalla","doi":"10.1093/ejil/chad033","DOIUrl":"https://doi.org/10.1093/ejil/chad033","url":null,"abstract":"\u0000 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.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44442362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 both in relation 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 have made a substantive difference in legal outcomes.
{"title":"International Law Must Respond to the Reality of Future Generations: A Reply to Stephen Humphreys","authors":"P. Lawrence","doi":"10.1093/ejil/chad034","DOIUrl":"https://doi.org/10.1093/ejil/chad034","url":null,"abstract":"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 both in relation 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 have made a substantive difference in legal outcomes.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43104568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Diane Desierto, Review of Tom Ginsburg, Democracies and International Law","authors":"Diane A Desierto","doi":"10.1093/ejil/chad040","DOIUrl":"https://doi.org/10.1093/ejil/chad040","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135003072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Chris Whomersley, Review of Stefan Talmon (ed.), German Practice in International Law","authors":"Chris Whomersley","doi":"10.1093/ejil/chad042","DOIUrl":"https://doi.org/10.1093/ejil/chad042","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136260834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract 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.
{"title":"Unmasking the Term 'Dual Use' in EU Spyware Export Control","authors":"Lena Riecke","doi":"10.1093/ejil/chad039","DOIUrl":"https://doi.org/10.1093/ejil/chad039","url":null,"abstract":"Abstract 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.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134996875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Last Page","authors":"","doi":"10.1093/ejil/chad038","DOIUrl":"https://doi.org/10.1093/ejil/chad038","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Stewart Manley, Pardis Moslemzadeh Tehrani, Rajah Rasiah
Abstract 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.
{"title":"The (Non-)Use of African Law by the International Criminal Court","authors":"Stewart Manley, Pardis Moslemzadeh Tehrani, Rajah Rasiah","doi":"10.1093/ejil/chad035","DOIUrl":"https://doi.org/10.1093/ejil/chad035","url":null,"abstract":"Abstract 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.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136106552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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