In This Issue

This issue, and this volume, opens with our annual EJIL Foreword, authored this year by Susan Marks. Marks provides a critical exploration of the enduring metaphor of the world as a family, examining the ideas about family that both influence and are influenced by it. Through a careful analysis of three prominent familial tropes – the human family, the family of nations, and the need to take action for the sake of our children – Marks reveals the set of real and idealized family models mobilized in international discourse. While recognizing the role of familial language in emancipatory discourses, Marks warns that such language promotes a false notion of unity grounded in biological filiation, which ultimately reinforces social divisions, entrenches hierarchies, and depoliticizes urgent global challenges.

In our Articles section, Jarrod Hepburn examines the doctrine of legitimate expectations in international investment law. Hepburn emphasizes that the doctrine lacks a textual foundation in investment treaties and criticizes the frequent justification for this doctrine as reflecting a general principle of law. Hepburn explores four alternative legal justifications, ultimately concluding that the most plausible basis for the doctrine lies in its status as a rule of special custom, applicable between states that have manifested acceptance of it in pleadings before investment tribunals.

The second article, by Ka Lok Yip, criticizes two dominant approaches to interpreting the right to life under international human rights law (IHRL) during the conduct of hostilities. Yip argues that both the ‘traditional’ approach, which defers to international humanitarian law (IHL) as lex specialis, and the ‘normative’ approach, which treats any killing violating IHL as arbitrary under IHRL, sideline the underlying social issue; namely, the deprivation of life during war and what to do about it. In response, Yip proposes a social ontological approach, reconnecting the norms of IHL and IHRL with the structural causes of death during hostilities.

Closing the Articles section, Jens Theilen addresses the ongoing significance of colonialism within the European human rights project. Drawing on the preparatory works of the European Convention on Human Rights, Theilen demonstrates how civilizational hierarchies between Europe and other regions were foundational to European human rights from their inception. Theilen further argues that these hierarchies persist today, by looking at two central legal dimensions: the territorial and extraterritorial applicability of the Convention and the notion of ‘European consensus’ associated with the margin of appreciation.

Roaming Charges often takes us to ‘Places with a Soul’. In this issue that place is a hairdressing salon in Kibera, Nairobi.

Finally, The Last Page features a new poem by international lawyer Gregory Shaffer.