Built on trust: the rigorous review process behind Oxford Law Pro’s Content [infographic]

Legal professionals need content they can depend on—accuracy, authority, and integrity are non-negotiable. At Oxford University Press, every legal title included in Oxford Law Pro undergoes a thorough review process involving Acquisition Editors, expert peer reviewers, and final approval by OUP Delegates, trusted senior professors at the University of Oxford and other leading institutions. This infographic delves into the detail of the review process, demonstrating how OUP ensures that its legal publications meet the highest standards, earning the trust of practitioners and scholars around the globe.

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How to be a good lawyer in an AI world

“AI is an amazing legal assistant that will cut out all the boring work and make you three times as efficient.” 

“AI is a copyright thief that will take your work and reproduce it without attribution or remuneration.”

“AI produces great value for your clients.”

“AI gets things wrong and will make you a global laughing stock if you cite imaginary cases in your court pleadings.”

Sounds familiar? There is no shortage of opinions on generative artificial intelligence (Gen AI) and its uses in the legal space. If you are a lawyer, it is probably dominating your office meetings and working dinner conversations. Many firms are taking a cautious approach but, with legal technology providers pouring hundreds of millions of pounds into developing ever faster, more accurate tools, it feels only a matter of time before the use of Gen AI is an integral part of most lawyers’ working days. That has interesting, if uncertain, implications for how young lawyers learn their craft and the kind of roles available to legal professionals, as well as for the delivery of justice.

There is something else that merits attention in the AI debate: what is the value of human thinking about the law? Law doesn’t exist in a vacuum. It is shaped and applied in a social, political, and economic reality created by humans. It is a deeply human endeavour. How can the law evolve if algorithms use statistics to apply legislation and precedent to the facts and produce pleadings—or even decisions—based on the most probable outcome? What is the role of lawyers and judges if their work can be mined by a large language model (LLM), which can then create its own legal advice, pleadings, and judgments, as well as legal scholarship, for anyone who knows how to write the right prompts? What does it mean to be a good lawyer when AI can do your work in seconds—for free?

We are not quite in that world yet but it is not a far-fetched scenario. Numerous tests have shown that the differences between student- or AI-written essays can be imperceptible even to experienced lecturers. Some of the steps to be taken are deeply practical: establish the right guardrails to stop the sharing of protected information with LLMs that will ingest that information and reuse it; train lawyers and legal scholars on how to use AI responsibly and to always check the source material; and press tech companies to be transparent about how their LLMs are trained and users’ data and privacy are protected. Ensuring LLMs are free from bias is particularly important. No single lawyer can achieve this but, collectively, lawyers’ advocacy for responsible, safe AI will make a difference.

Perhaps even more important is this: among everything AI promises, let us not lose sight of the importance of human thinking and creativity to the law. Sometimes a completely new line of argument or a highly creative interpretation is required to adapt the law to changing circumstances or shifts in society. AI cannot, or perhaps should not, do this. The best thinking is often slow, maturing over time as a lawyer or judge mulls a case over. Or it emerges in conversations with others, sometimes in unexpected ways. It is often sparked by something you read. Legal publishing has a crucial role here: helping to disseminate the best legal analysis and commentary across the globe and create a permanent record of every book, article, and short form piece. Being a good lawyer in an AI world involves placing enduring value on the quality and originality of human thought and scholarship.

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Community, commerce, and open access experimentation

You may have wondered why so many publishers are announcing pilot projects on open access (OA) publishing. The theme of Open Access Week (October 21-27), Community over Commercialization, hints at the reason: publishers want to engage with the community’s request for new models but can’t afford to make a loss on OA (and shouldn’t be expected to). So, the innovation challenge is taken up by means of pilots: experiments that can be reviewed and then either rejected, repeated, or adapted.

Two Innovative Pilots

This year OUP is trialling two different OA funding models. Up until now OUP’s gold OA publishing outside of journals has largely been funded by processing charges for individual books, paid for by research funders or individual institutions. The two new initiatives look to fund OA on a much larger scale via diamond OA models that OUP has adopted and refined:

• Oxford Scholarship Online (OSO): Commit to Open seeks funding from the academic library community for the OA publication of 30 participating books. While other publishers have launched similar initiatives, the novelty here is our aim for radical openness:
  • the 30 titles are announced up front.
  • we have no minimum commitment threshold for publishing a book under an OA licence.
  • progress will be publicized monthly.
• Max Planck Encyclopedias of International Law, the market-leading international law resource published by OUP, will be among the first non-journal publications to adopt the Subscribe to Open model (S2O). A range of publishers have tried out S2O with journals, where current subscribers are asked to continue to pay each year so that existing content can be made free to all, and new content is published under an OA license. So long as a high enough proportion of existing subscribers renew, the paywall is removed for a year, and then the process repeats the following year.

Impact on the Community

For OUP, finding ways to expand our OA offering is a perfect fit with our mission. It helps us to seize the opportunity that digital distribution offers for the unlimited dissemination of scholarship. That said, we are also acutely aware that paid-for OA can present risks of lower quality thresholds, and that there is a perception that OA books in particular are in some sense lesser than non-OA books.

For that reason, each book in our Commit to Open program was carefully selected for this pilot. Each went through the same rigorous peer- and internal -review process and was slated for regular sale as part of OSO before being pulled into Commit to Open. All of them would fare very well as commercial projects but we are excited to bring these works to an even broader community of readers through the program, and we look forward to seeing how they contribute to this developing model. Another key community element of the initiative is the inclusion of authors and topics that still struggle to attract funding for OA publishing: a “Support New Voices” collection by authors who are within six years of their first academic appointment, and a Humanities collection.

In the case of the Encyclopedias, they are already the most trusted source in the field. The importance for the community here lies in the nature of the content. International law deals with highly topical issues of global justice and equality—knowledge of it has the potential to benefit students, scholars, civil society activists, and practitioners everywhere. To make such a trusted resource freely available to the whole world would represent a significant public good.

Sustainability

What determines whether a pilot becomes a program? As mentioned, we use pilots to answer questions of sustainability and replication. In the case of Commit to Open, it is very labour-intensive to do it the way we have chosen e.g. agreeing all of the titles upfront, and the manual processes needed to implement a novel funding model. If the pilot is successful, we will need to work out whether it is sustainable to carry it out again, whether to expand it, and what permanent systems need to be put in place to support the program.

With Subscribe to Open the challenge is a different one. Operationally it is simplicity itself—absolutely nothing changes other than that the paywall is removed, so long as renewals hold up. But therein lies the risk: the (understandable) temptation for some subscribers to wait and see and take advantage of free access.

But those are questions for further down the line. Our immediate concern is getting engagement from the community and hearing responses to these initiatives, something we are very much hoping to achieve in OA Week.

You can find out more about Oxford Scholarship Online (OSO): Commit to Open in our upcoming librarian webinar on Tuesday, November 26, 2024. Sign up here.

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Rethinking unjust enrichment

Restitutionary claims are pertinent to our daily interactions and commercial dealings. These claims arise in many scenarios including: improperly collected taxes, mistaken payments, disputes between cohabitants, payments on another person’s debt, mistaken improvements on another person’s property, and provision of unrequested services.

Originally coined by one of the leading private law scholars of the 20^th century, Oxford Law Professor Peter Birks (1940-2002), the law of unjust enrichment provides a unifying framework for understanding the nature of all restitutionary claims, revealing a single ‘skeleton’ beneath. Stated in these terms, the law of unjust enrichment is a distinct ground of liability, alongside such classical private law categories as property, contract, torts, and equity. By situating previously disorganised restitutionary claims within one normative thread, unjust enrichment makes an argument about the past, present, and future of private law.

Professor Peter Birks stated that the following four elements constitute unjust enrichment’s liability formula:

1. A defendant’s enrichment—the claimant should demonstrate that the defendant received some ‘benefit’ or ‘value’;
2. at the plaintiff’s expense—the claimant should demonstrate that the enrichment occurred at their expense, establishing a causal link between the parties;
3. the enrichment is unjust—the claimant should demonstrate that the enrichment falls into one of the categories previously recognised by the courts, such as mistake, duress, undue influence, or frustrated contract;
4. defences—if the claimant proves the first three elements of the formula, then the defendant is able to claim the existence of one (or more) of the defences previously recognised by the courts, which could deny restitution.

Consider, for example, the case of mistaken payments where a claimant mistakenly transfers money to a defendant. The defendant receives money, meaning they are ‘enriched’ at the claimant’s expense. The case falls within one of the previously established categories—mistakes. It is open to the defendant to claim one of the defences. For example, the defendant can demonstrate that they spent the money in good faith on purchasing certain goods; something they would not have done without the mistaken transfer.

The four steps formula has been adopted in the House of Lords in Lipkin Gorman (1992) and then followed to varying degrees in other common law jurisdictions, such as Singapore, Hong Kong, and New Zealand. The four-stage formula has also heavily informed Canadian jurisprudence. Unjust enrichment has a different history in Australia where it has fallen in and out of favour. Yet, the future of unjust enrichment could not be brighter, not just in the UK, but across a wide range of the Commonwealth jurisdictions.

However, despite the continued support for unjust enrichment, there have always been academic critics of the idea. This now includes those who once supported the idea. The recent monograph by Oxford Law Professor Robert Stevens has challenged each one of the constitutive elements of the formula. Stevens demonstrates the significant difficulty that the UK courts have faced since Lipkin Gorman. Some elements and concepts of the formula (such as the concept of ‘value’ and the ‘at the plaintiff’s expense’ element) are intolerably vague and flexible, leading to unjustifiable results and implausible unpredictability.

Most troublingly, Stevens shows that a careful review of many restitutionary claims reveals them to be at odds with the most important element of Birks’ formula—the defendant’s enrichment. An examination of the courts’ reasoning over the centuries suggests that the courts have traditionally focused on the nature of a particular transaction between parties, rather than on the consequences of it. The question of whether given plaintiff was enriched, suffered a loss, or remained the same as a result of a transaction has been irrelevant to the question of finding a defendant liable in restitution. In other words, restitutionary claims appear to epitomise a law of defective transactions, rather than a law of a defendant’s enrichment. Stevens’ point is brutally simple: unjust enrichment doctrinally collapses.

Furthermore, contemporary scholars across the world have united in their opposition to unjust enrichment; the sceptics coming from such jurisdictions as Australia, New Zealand, Hong Kong, Canada, USA, Ireland, and India have expressed their concerns. The united manifesto says that a deep understanding of unjust enrichment requires an examination of its core claims from different angles. This understanding is critical for the future development of private law and private law categories, and the consideration of how these can serve the needs of society in the most just, fair, and predictable way.

Accordingly, our work Rethinking Unjust Enrichment has provided a comprehensive outlook of unjust enrichment from the following multi-layered, interdisciplinary perspectives: doctrine, history, theory, and sociology. For instance, it has been argued that the doctrinal fallacies of unjust enrichment are not limited to the UK, but pertinent to other jurisdictions as well. Historically, it has been doubted whether unjust enrichment was present in the reasoning of common law judges. The very idea that a defendant should be found liable due to their enrichment appears to be problematic through the conceptual lens of justice and fairness in private law. Finally, sociologically, it has been suggested that the remarkable success of unjust enrichment should be attributed more to the identity of the reformers rather than to the doctrinal attractiveness of the four-stage formula.

Unjust enrichment stands at a crossroad. The lessons of the recent years perhaps demonstrate two things: (1) the centrality of restitutionary claims and (2) the heated debate between supporters and opponents of the idea of unjust enrichment as a unifying basis of those claims. A productive dialogue between the two rival camps should be encouraged to contemplate together how we should understand the past, present, and future of private law.

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Informers: secrets, truths, and dignity

Over 100,000 individuals acted as secret informers reporting to state security police in Czechoslovakia during the Communist years. The contents of all their reports were saved in extensive police files. Similar dynamics occurred throughout all of Eastern Europe.

The intricacies of informers, the mist of their secrets and muck of their revelations, has even inspired novelists and song writers. For example:

We’d like to know a little bit about you for our files
We’d like to help you learn to help yourself
Hide it in a hiding place where no one ever goes
Put it in your pantry with your cupcakes

Simon and Garfunkel, ‘Mrs. Robinson’ (1968) from the album Bookends

‘[O]ur only immortality is in the police files.’

Milan Kundera, The Book of Laughter and Forgetting (Aaron Asher tr, Faber & Faber 1996)

Why do people inform on others—including neighbors, family members, co-workers, friends, lovers—to the secret police in repressive societies? Once repression abates, and regimes democratize, how should law and political transition approach erstwhile informers?

Emotions are among key drivers that motor people to inform on others. Four emotions in particular should be noted:

• resentment (getting even and settling scores)
• desire (getting ahead and grabbing things)
• allegiance (to an ideology, to the state, to a vision)
• fear (of the state, of the police, of being exposed)

Informing is a tool of social navigation: in the words of Simon and Garfunkel, as a way for people to help themselves. Informers, for the most part, are marginal ordinary folks who are victimized by the state and, in turn, victimize others.

Informers are not limited to one place in time; they are not boxed into post-Communist Central and Eastern Europe. Indeed, they are everywhere, including very close to home. The only part of the United Kingdom to be occupied by the Nazis—the Channel Islands—was chock-full of informers and collaborators, along with resisters, during World War II, and all are featured in a local museum in Jersey. No state or social movement—no matter how virtuous or vile, how maudlin, Machiavellian, or magnificent—can operate without informers. As early as one month into the Russia-Ukraine war, thousands of Ukrainians faced prosecution for collaborating with, and supplying information to, the invading Russians. Indeed, armed with our iPhones, we are all recorders, informers, and cancellers now. We are all whistleblowers, for better or for worse.

What should one do with informers after the repressive regime falls? In post-Communist Czech Republic, informers were largely scapegoated and ostracized. They were purged from public offices and jobs. They were openly mocked. Politically, this was an easy task because, throughout history and across cultures, informers are largely seen as sniveling rats, moles, snitches, turn-coats, and finks. These words used to describe informers reveal near universal disdain.

What is more, the Czechoslovak Communist secret police files—a major data source—were opened to the public to peruse and review. These files are even being digitized. Their subjects thereby became immortalized, to draw from Kundera. As a result, the life-stories of informers became gossipy grist for the public mill. But so too did all the scurrilous and embarrassing details of what they reported about the lives of others—namely, individuals we call the informed-upons—such as affairs, outbursts, addictions, indiscretions, inanities, awkwardness, incompetence, petty crimes, dysfunctions, and health woes.

Transparency and clarity measures have been mainstreamed as part of transitional justice. The United Nations has declared March 24^th as the international day for the right to the truth. That said, our findings cast some doubt upon the unadulterated nature of this embrace. We believe there may be cause to pause the pursuit of ‘the truth’ at all costs. The right to the truth can lead to grotesque privacy invasions. Ultimately, in the Czech Republic, the scapegoating of informers delivered comfort to many people otherwise complicit in Communist dictatorship while the opening of the files visited cruelties upon many others.

In 2025, collaborator archives in the Netherlands will go public after having been shuttered for 75 years. These archives contain the files of a special court, the Bijzondere Rechtspleging (BR). The BR was established after WWII to prosecute alleged Nazi collaborators. The BR investigated over 300,000 individuals; it tried 65,000. Some of those tried were executed, some imprisoned, and others stripped of their civil rights. The BR archive, however, implicates a much larger array of individuals, including persons whose investigations were interrupted, stopped, never started, and those who were falsely accused. Understandably, opening these archives to the public has triggered controversy, just as it did in the Czech Republic. One big difference in the Dutch case is that almost all the collaborators have passed away. But they have families, children, and grandchildren. The dead, moreover, can never explain, clarify, apologize, cry, or argue.

Informing—driven by basic human emotions we identify as resentment, desire, allegiance, and fear—sits uneasily with many transitional justice measures. Our work offers a new lens—rooted in dignity—through which to manage this controversy, alleviate this unease, and ensure that transitional justice is more ‘emotionally intelligent’, respects fairness, and does not succumb to politics.

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Bringing decolonisation to law teaching: fulfilling the promise of legal pedagogy

I, like many others, came to the law school because I heard justice and freedom and peace in its name. For many, like me, the sojourn into the study of law is triggered by some event or situation. For me it was the Rwandan genocide of 1994. In April of 1994 nearly a million people were brutally murdered in that country. Yet, the international community was unwilling or unable to act, despite the fact that the killing was covered by international media. The hopelessness was overwhelming. And I wondered and hoped that the study of law would give me answers to how we stop endless suffering and devastation. This experience of coming to the law for hope is replicated across the world. For some, their triggering event is something happening far away to people they do not know and will never meet. For others, it is something more personal but no less earth-shattering. Something happening to them, a family member, or a friend—extreme poverty, domestic violence, alienation, police brutality, forced migration etc. Many people continue to come to the law school for answers. For me, like numerous others, the promises of the law school did not deliver exactly as expected. Especially for students who have experienced racism, students who are struggling to understand its persistence, students born into the shadow of empire, students for whom the imminence of environmental devastation is immediate and unyielding… decolonisation has provided some solace to their unfulfilled hopes.

What is decolonisation?

Decolonisation can be described as a collection of repudiatory and resistant responses to the multifaceted inauguration of colonial ways of thinking, being, and doing in the world—this inauguration is often dated to the fifteenth century. These colonial logics rely on unequal ways of thinking of the body, space, and time that have helped develop structures reliant on racism, classism, sexism, overexploitation, and xenophobia among others. As such, these systems of thought have helped produce, inter alia, racial injustice, extreme inequality, and environmental devastation, through the manufacture of race as a hierarchy of humanity, the kidnap and enslavement of African peoples, as well as the territorial commodification and occupation of land across the globe. Decolonisation describes a set of immediate and continuing responses developed by indigenous, racialised, and colonised peoples to resist these multifaceted methods of imperialism. These responses have come in different forms—independence demands, outright resistance, calls for sovereignty, and the restoration of lost knowledges etc. As such, we should understand that decolonisation is not one thing, but a set of context-dependent strategies, adopted by peoples resisting all forms of enduring colonisation—strategies specifically relevant to the particular ways in which colonial ideologies manifest themselves in those particular places. In other words, decolonisation, in practice, has often involved indigenous peoples, colonised peoples, racialised peoples, and their allies taking up the tools that they have, to resist the specific forms of oppression that they experience, in the places where they experience it, at the time they experience it. For them, decolonisation is a tool to make their futures possible, liveable, and flourishing.

Can we use this decolonisation in the Law School?

Decolonisation as I have described it here has had a long history—inside and outside the classroom. In our present context, the demand that #RhodesMustFall, which emerged at the University of Cape Town (UCT) in early 2015 and quickly spread across South Africa and beyond, found fertile ground with students and staff across the world grappling with the present manifestations of empire’s long shadow. Very often the fruits of this sprouted in law schools under the mandate “decolonise the law school.” These demands have also been taken up by many law teachers across the world as they seek to unpack the afterlives of colonialism in their work. For me, this has involved the design on a completely new unit, called “Law and Race.” In that unit, we use multidisciplinary methods to present a wide array of texts, music, films, histories, and knowledges to students to get them to reflect on how the history of colonialism has an impact on the nature of the law they study. In this unit, we consider various aspects of both the history of the British Empire and the role of law as means of attaining justice, as well as being complicit in producing the situations from which justice is being sought. We also consider what the students’ role is in the world as people who will soon be in a possession of a law degree. Threatened as we are by the dangers of racism, inequality, and environmental devastation, we unpack what they can do in response to these perils. I want my students to take a look at the history of law and the history of the world and to consider what this history means for how we understand the world and repair current harms. What does this look into the past and the present mean for the future? How do we as agents of law use decolonisation as a tool to make all our futures possible, liveable, and flourishing? My proposition is that we need to change the lens through which we understand the present, by looking to the past, so we can craft better futures for us all and for the earth upon which we at present just precariously survive. To survive at all, we need new ways of thinking, being and doing in the world—including in the classroom.

Where can decolonisation take us?

It is important to remember that decolonisation is not its own goal, but what we hope to achieve with it is. For ourselves and our students, decolonisation may provide us with the vocabulary and framework we need to develop tools to help us craft a discipline that will be able to rescue the planet from the perdition of racial injustice, extreme inequality, and environmental disaster. This challenge requires creativity, imagination, innovation, and courage. As such, I suggest that rather than asking formulaic questions like, “how do we decolonise the curriculum?”, we must ask more creative ones. For example: “What does it mean to dream of new anticolonial worlds from within the law school?” This prevents us from applying cosmetic changes to the curriculum with no real change to the structure and role of law schools or to the situations that bring our students to the law school. In this endeavour, we have a responsibility to use all the tools at our disposal to consider the ways in which our discipline can bring an end to the perils that continue to put our planet and all its inhabitants in jeopardy. This is a task that we can carry out now and hand over to our students—while we are still here. Survival is being threatened on a planetary scale through, among other things, the combined forces of global inequality, racial violence, and climate change. My hope is that our joint work on decolonisation and in innovative legal pedagogy will contribute to the fulfilment of those dreams.

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Latin American voices of international affairs

In the field of International Relations (IR), voices from Latin America have long been underrepresented—overshadowed by dominant Western perspectives, particularly those from the United States and Britain. This blog post aims to spotlight some of the contributions of Latin American thinkers to IR, showcasing how these perspectives challenge established norms and offer unique insights into both regional and global dynamics. By bringing these voices to the forefront, it is possible to foster more inclusive and comprehensive discourses in IR.

Latin American thinkers have significantly contributed to IR by questioning long-standing norms and introducing diverse theoretical frameworks. Concepts such as centre, periphery, development, dependency, autonomy, viability, permissibility, and peripheral realism are crucial for understanding the political and economic dynamics within Latin America. These ideas not only reflect the region’s unique experiences, but also provide valuable perspectives to understand international affairs in general. By scrutinizing these established norms, Latin American thinkers push the boundaries of traditional IR, encouraging a more critical and reflective approach to international studies.

Prominent figures like Hélio Jaguaribe and Juan Carlos Puig have laid foundational work in Latin American International Relations. Their contributions have been instrumental in shaping autonomous foreign policies, especially among left-wing governments in the late 20^th and early 21st century. Understanding their work and influence helps to illuminate the evolving foreign policy dynamics and debates within the region over the past few decades, while ignoring them, on the other hand, risks overlooking critical insights that are essential for understanding Latin American international relations. These pioneering thinkers have advocated for a more self-reliant and independent approach to foreign policy, challenging the dominance of external powers and promoting regional solidarity and cooperation.

The interplay between theory and practice in Latin American foreign policy is a critical area of exploration. The often-neglected dynamics of peripheral countries reveal much about how policy decisions are formulated and how states in the region interact on both internal and global stages. This scholar-practitioner relationship offers deep insights into the real-world application of theoretical concepts. By examining how theoretical ideas are translated into practical policies, we gain a better understanding of the unique challenges and opportunities faced by Latin American countries in the international arena.

Latin American scholars have also made significant, yet often overlooked, contributions to the subfield of International Political Economy (IPE). Over the past two decades, their work has shed light on economic development, international engagement, and policy responses unique to the region’s challenges. These perspectives may enrich the intellectual discourse within IPE, providing a more nuanced understanding of global economic interactions. By highlighting the distinctive economic strategies and responses of Latin American countries, these scholars can offer valuable insights into the complexities of regional and global economic governance and development.

Latin American countries face numerous challenges in the global political arena, from navigating economic dependencies to engaging in cultural exchanges. The region’s strategic manoeuvring within global governance structures offers interesting studies on how less powerful nations assert themselves in a world often dominated by stronger states. By analysing the strategies and tactics employed by Latin American states, we can better appreciate their resilience and ingenuity in pursuing Global South national interests and promoting regional cooperation in an increasingly interconnected world.

Now, highlighting the contributions of women in the histories of IR and international thought is also crucial for gaining more inclusive narratives. Some Latin-American women have played significant roles in shaping IR in the region, demonstrating resilience and intellectual prowess in global politics. Their stories emphasize the need for diverse voices and perspectives in the field. By uncovering the often-overlooked contributions of women from the Global South, and in particular from Latin America, we not only enrich our understanding of IR, but also challenge the gender biases that have historically marginalised women’s voices in the region.

Alicia Moreau is an example of an Argentinian thinker from the early 20th century who provides a nuanced perspective on war, peace, and the quest for a more egalitarian society. Her non-violent approach, emphasising equality, education, and democracy, is relevant today. Moreau’s ideas resonate with contemporary challenges; including her in the histories of international thought and IR would contribute to creating more inclusive narratives. In addition, by revisiting her contributions, we can draw valuable lessons for addressing current global issues, emphasising the importance of non-violence, social justice, women, and democratic governance.

This blog post hopes to serve as an invitation to academics and practitioners worldwide to engage with some of the intellectual contributions of Latin America to understand international affairs. By bringing these voices to the forefront, we could have more inclusive and holistic understandings of international relations. Their perspectives often challenge the status quo and urge readers to reconsider preconceived notions, appreciating the diverse insights Latin American thinkers bring in understanding the world. This endeavour not only showcases Latin American contributions, but also sets the stage for further exploration and collaboration, making International Relations —as well as other fields such as the history of international thought and IPE— truly international. Only through an inclusive approach, we will be able to attain a more equitable and diverse understanding of world affairs.

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Data protection, the LED, and the evolving landscape of AI governance

In May 2024, OUP attended the Computers, Privacy and Data Protection (CPDP) conference in Brussels where academics, practitioners, and policymakers from the fields of data protection and privacy, as well as politics and technology, gathered to discuss the latest in legal, regulatory, academic, and technological development in privacy and data protection. The theme of this year’s conference centred around the seemingly inescapable growth of AI and its increasing impact on all parts of our lives, cultures, and societies, and sought to ask the fundamental question: is AI governable?

We spoke to Franziska Boehm and Eleni Kosta, two leading scholars who co-edited The EU Law Enforcement Directive: A Commentary to get their thoughts on the evolving landscape of data protection and how this might inspire further research into the LED, what the European Parliament’s recent adoption of the AI Act might mean for the LED in the future, and the evolving landscape of data protection.

Please could you briefly introduce yourselves and the titles of your book?

EK: I’m Eleni Kosta, a Professor of Technology Law and Human Rights at the University of Tilburg.

FB: And I’m Franziska Boehm, a Law Professor in Germany at the Karlsruhe Institute of Technology and the Leibniz Institute of Infrastructure.

EK: And the two of us co-edited the commentary on the Law Enforcement Directive, which is Directive 2016/680 on the processing of personal data in the field of law enforcement, so it’s kind of the little brother of the GDPR.

What are you hoping readers will take from the book?

EK: Because this is not a traditional book (it is a commentary), we hope that it will function as a source of guidance to all sorts of legal scholars, practitioners, judges, students, lawyers…

FB: Even police officers…

EK: Exactly.

And how do you think it might inspire future research in the area of the LED? What do you think are the areas that are evolving or that might require further research in the future? Or further guidance?

EK: Case law.

FB: Yes, case law, but I also think automatic decisions and the connection between law enforcement and AI. The use of AI tools in law enforcement is a big topic I think, which we were discussing in the Europol panel. They said we should agree that AI should be used more in law enforcement—I don’t know whether we should agree exactly—but I think that automatic decisions in law enforcement is a special topic that requires more research.

And it’s obviously a fast-moving area, so there are challenges there…

EK: Yes, because it took a few years for the EU member states to actually transpose the LED into their national legal orders, so now we see that more and more court cases appear, and then several of them reach the Court of Justice, which gives some guidance, and then there will be a need for further work.

You touched on it there, but what are your thoughts around the theme of the conference – AI governance, and is AI governable? How does that impact research around the LED?

FB: As I mentioned, it will be an important topic, and we need more critical voices also to, let’s say, limit the use of AI in law enforcement a bit, because there are serious fundamental rights issues that come along with it, and I think that this is one part of this topic; the other side is the challenges that also arise via the use of AI, possibly also partly in law enforcement, and finding the right balance there.

EK: Also, the fact that we just got the approval of the AI Act by the Council yesterday [22^nd May] makes the conference super timely. We were anticipating it—we are both members of the scientific committee—so we were thinking about it. Are data protection and AI closely related? Of course they are not overlapping, but they are certainly closely related, so I think that it’s interesting that the conference is opening up to that.

FB: Also, the interlinks between the AI Act and the Law Enforcement Directive—that will need further work as well very soon.

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Human vulnerability in the EU Artificial Intelligence Act

Vulnerability is an intrinsic characteristic of human beings. We depend on others (families, social structures, and the state) to enjoy our essential needs and to flourish as human beings. In specific contexts and relationships, this dependency exposes us to power imbalances and higher risks of harm. In other words, it increases our vulnerability.

The digital revolution has amplified this phenomenon—exposing our lives to addictive social media architectures, mentally manipulative commercial practices, the exploitative and abusive collection of behavioural data, more sophisticated and hidden forms of discrimination, and much more. The EU General Data Protection Regulation (GDPR) is the first “digital law” that seems to recognize the enhanced vulnerability of online users. The notion of “vulnerable consumers” (introduced in the EU law in 2005 via the Unfair Commercial Practices Directive) has some similarities with the idea of “vulnerable data subjects”. But who are the vulnerable data subjects in the digital ecosystem? Or, better, what might they be vulnerable to? In which contexts? Towards whom?

These questions have become much more urgent due to the EU Artificial Intelligence Act (hereinafter AIA), the most discussed EU law of our age. The final text was approved by the European Parliament on 13 March 2024, and will be fully applicable in two years. There are 16 references to the notion of human vulnerabilities in the final text of the AIA. For example, AI systems exploiting certain human vulnerabilities are now officially forbidden (Article 5(1)(b)). In addition, human vulnerabilities are a parameter to update the list of “high-risk AI systems” in the future (Article 7(h)). Such vulnerabilities must be analyzed and mitigated in the new Fundamental Rights Impact Assessment by high-risk AI deployers (Article 27) and considered with “particular attention” by the market surveillance authorities when dealing with AI systems presenting risk (Article 79(2)). The AIA “Codes of conduct” will need to assess and prevent the negative impact of AI systems on vulnerable persons (Article 90). Within the context of regulatory sandboxes in the AIA, the data subjects in a condition of vulnerability due to their age or disability must be “appropriately protected” (Article 60).

Despite all these references to human vulnerability, there is still considerable uncertainty about the concept. Article 3 of the AIA contains 68 definitions of concepts and terms—none of which are about human vulnerability. In addition, the language and the semantics referring to vulnerability vary greatly throughout the text of the law.

Article 7(h)

Despite the lack of a definition, the most exhaustive and fruitful reference to a conceptualization of vulnerability is in Article 7(h). If the European Commission wants to update the list of high-risk AI systems in the future, it has to consider, among other parameters, “the extent to which there is an imbalance of power, or the persons who are potentially harmed or suffer an adverse impact are in a vulnerable position in relation to the deployer of an AI system, in particular due to status, authority, knowledge, economic or social circumstances, or age”. Here, the AIA explicitly refers to the concept of vulnerability as a gradual, contextual element. The language “persons… in a vulnerable position” conveys the idea that vulnerability is an accessory condition and not a label that can define people. It can also be inferred that vulnerability is relational (“vulnerable position in relation to”) and based on “power imbalance”, which might be generated by personal characteristics of the powerless person (“knowledge, age, status”), of the powerful party (“authority”), or by social factors (“economic or social circumstances”). These are not the only possible sources of vulnerability admitted in the AIA since Article 7(h) says “in particular”, admitting other structural, external or internal conditions that might generate vulnerability.

The AIA’s preamble contains three more specific cases of human vulnerabilities. In particular, it includes: children’s vulnerabilities online (recital 48); people applying for or receiving essential public benefits or services because of their typical “dependency” on those benefits (recital 58); and people who are subjects to AI systems in migration, asylum and border control management (recital 60), since they are “dependent on the outcome of the actions of the competent public authorities”. Interestingly, these last two cases explicitly relate vulnerability to dependency, in correlation with the traditional legal literature on legal vulnerability (see, e.g., Martha Fineman).

Article 5(1)b

Article 5(1)(b) AIA prohibits the commercialization or use of an “AI system that exploits any of the vulnerabilities of a person or a specific group of persons due to their age, disability or a specific social or economic situation, with the objective, or the effect, of materially distorting the behaviour of that person or a person belonging to that group in a manner that causes or is reasonably likely to cause that person or another person significant harm”.

Although it seems to refer to “any of the vulnerabilities of a person or a group”, it clarifies specific sources of vulnerability (“their age, disability or a specific social or economic situation”). While we might easily interpret cases of vulnerability based on “age and disability”, the notion of “specific social or economic situation” seems vaguer. Recital 29 mentions some non-exhaustive examples, i.e. “persons living in extreme poverty, ethnic or religious minorities”. However, a simple textual analysis of the AIA should push for a more comprehensive list of cases, including people with lower incomes or who belong to specific marginalized groups, e.g. political, linguistic or racial minorities, migrants, LGBTIA+ people.

Some striking examples of vulnerability situations excluded from the wording in Article 5 AIA are victims of gender-based violence, employees, patients (without disabilities), gamblers, and people addicted to social media or with other specific addictions. This is unless we accept an extensive understanding of “specific social situation” or of disability (which is not possible, due to the explicit reference to the Directive (EU) 2019/882, defining disability on long-term impairments and barrier-mediated limitations to equal participation in society).

Conclusions

We observe that the references to vulnerability factors in the AIA are much broader in Article 7(2)(f) than in Article 5(1)(b), where there is no specific reference to power imbalance, authority, or knowledge asymmetry. The reason for this discrepancy is probably that Article 5 strictly prohibits AI practices, while Article 7 instead provides the regulator with instructions. Accordingly, the list in Article 5 should be clear and foreseeable. However, the “social or economic situation” in Article 5(1)(b) is anything but.

In conclusion, although the AIA is one of the world’s most advanced pieces of legislation regarding the recognition and protection of human vulnerabilities, the concept is still complex and problematic. The interpersonal, relational, contextual and power-imbalanced notion of vulnerability highlighted in the data protection literature still seems extremely pertinent and meaningful. However, the prohibitions of vulnerability exploitation in the AIA show many gaps, e.g. for what concerns some sources of vulnerability (employees, healthy patients, addicted consumers, or victims of gender-based violence).  Furthermore, the broad concepts, of power imbalance in Article 7 and social conditions in Article 5, will need specific authoritative interpretations in the coming months.

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Of politicians as newsreaders and other curiosities of our brave new digital world

Few will have been surprised by Ofcom’s recent verdict that GB News broke due impartiality rules by featuring politicians like Jacob Rees-Mogg and Esther McVey as news presenters. However, the regulator’s decision to handle GB News with kid gloves by putting it on notice whilst refraining from imposing statutory sanctions raised an eyebrow or two. A month earlier, Ofcom controversially cleared another GB presenter, Neil Oliver, of an accuracy breach as a result of linking the coronavirus vaccine to a deadly disease he referred to as ‘turbo cancer’. Ofcom argued that Oliver’s brief comments represented his personal views on a controversial topic, and did not materially mislead the audience. Press Freedom and Regulation in a Digital Era: A Comparative Study contrasts the incremental relaxation of broadcasting obligations with the global trend towards a heightened regulation of online news, and asks whether press freedom guarantees risk falling by the wayside as regulatory silos are re-negotiated in a converged media environment.  

Incidents of politicians acting as news presenters and of star pundits tweeting their personal political opinions, as in the case of Gary Lineker, show that the standard of impartiality is in flux. Once a crucial tenet of robust journalism, impartiality is increasingly seen as an impediment to freedom of expression, as an anachronistic relic from a bygone era. The press is allowed to be partisan, while cherishing an elusive ideal of objectivity. The internet teems with opinion-based journalism and rewards distinctive, even extreme voices. This raises the question whether broadcasting should still be shackled with due impartiality duties. The broadcast medium’s special regulation, as well as the need for public service broadcasting in a communication environment of plenty, is asked with unremitting urgency.

In the early 2010s, the House of Lords argued that the requirement of due impartiality be lifted for all non-PSB broadcast news providers. Others have maintained that the adherence of broadcasting to standards of impartiality, and the freedom of the press to express opinion, even where it develops TV-like online content, should be protected. The promotion of coherence in content standards should be limited to cross-platform, not cross-media consistency. In other words, regulatory standards should be the same regardless of whether broadcast or printed news content was delivered respectively on air, in print, or online. Neither the proposed cross-platform consistency nor the controversial lowering of non-PSBs’ impartiality commitments has materialised. In fact, the Draft Media Bill proposes to ‘help public service broadcasters better compete with media giants’ by extending impartiality to the likes of Netflix and Amazon Prime. At the same time, the Ofcom Broadcasting Code does not apply to online content, raising concerns that PSBs such as ITV and Channel 4 might not maintain the same accuracy and impartiality standards online as on air. This regulatory patchwork creates a real risk that audiences might be confused and that their expectations might be frustrated.

Against the background of this regulatory maze, a novel understanding not only of impartiality, but also of accuracy in the online domain is emerging. Online-only news providers, and occasionally also traditional media, sacrifice accuracy on the altar of shareability. The problem is exacerbated by the deluge of unregulated, unreliable news content online, and the widespread incapacity of the public to distinguish between news produced in line with ethical journalism norms and other forms of content creation. The rise of increasingly advanced forms of artificial intelligence is likely to further undermine trust in news. The attack on the Capitol as a result of then-President Trump’s unsubstantiated claims of election fraud became emblematic of the capacity of disinformation to undermine democratic processes, and prompted governments to adopt policy responses to stem the flood.

These policies have time and again stumbled against the intractable divide between professional and amateur news providers. In the UK, the carve-outs for recognised news publishers in the Online Safety Act have attracted widespread criticism of favouritism and of gaping loopholes ready to be exploited by rogue actors. In Germany, non-journalistic actors have been subjected to due diligence obligations whilst being deprived of the privileges to which legacy media are entitled. What is more, such non-professional news commentators are exposed to the backstop powers of the state media authorities, the bodies traditionally responsible for commercial broadcasting, at variance with long-held press freedom guarantees. The concern cannot easily be dismissed that such powers might be abused to purge unfavourable political opinions. Differently from traditional journalism, the German online press is thus committed to a state-sanctioned duty of accuracy. It is difficult to comprehend why individuals with little reach should be sanctioned for alleged violations of the accuracy standard, while mainstream media regularly commit such transgressions with impunity. The crusade against disinformation, driven by ever new ‘public shocks’, risks subjugating the online press, and crushing core tenets of press freedom.

A core question remains whether a policy per medium approach is still appropriate, and which medium might provide the blueprint for the emergent internet governance. The book argues that, for all their appeal, regulatory analogies need to be used with caution. The complementarity between the press and broadcasting models, rather than any model per se, can serve as a paradigm for a democratic online environment that is more oriented towards the maximisation of the public good than to the prevention of competitive imbalance or harm.

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Is it democratic to disqualify a popular candidate from the ballot?

That a popular candidate could be disqualified from running and removed from the ballot might, at first glance, seem at odds with the very idea of democracy. For that reason, despite his evident role in instigating an insurrection, many Republican senators demurred and chose not to impeach former President Donald J. Trump on 13 January 2021. There was no need, they thought. The American voters had already passed judgment. Trump would now fade away.

Three years later, with Trump still fully in control of the Republican Party and poised to regain the Presidency, the US Supreme Court decided per curiam that Courts cannot declare a candidate ineligible for public office under the “insurrection clause” of the Fourteenth Amendment. Moreover, the Supreme Court’s scheduled hearing of Trump’s executive immunity claim seems intended to guarantee that the federal January 6 case will occur too late to influence or interfere with the 2024 US Presidential Election.

In these and other cases, we can see that, despite the existence of constitutional mechanisms to disqualify antidemocrats from obtaining power, elected representatives, judges, and other officials are reluctant to use them.

At first glance, there seems to be something principled about their reluctance: what is democracy if not an equal chance to see one’s preferred candidate elected into public office; and what are political rights if not the right to choose one’s values freely, even if that choice may seem “wrong” to others? As long as someone adheres to the legal democratic procedures in effect for pursuing their goals, are their views not as valid as anyone else’s?

Democracy seems to mean that every member should have their interests and values considered equally, through value-neutral majoritarian procedures. Everything should in principle be “on the agenda” when it comes to these procedures, to ensure that the electorate holds final authority over decision-making.

A measure like political disqualification seems to undermine the essence of democratic equal chance—even when used to stop an unambiguous enemy of democracy. So many today, across the political spectrum, express reservations about using such measures, arguing that the decision can only be left to voters to decide.

That view is mistaken, however. Elected and appointed leaders, not to mention democratic citizens, can be more confident in their defence of democracy. Constitutional mechanisms that limit value-neutral procedures, including disqualification, can be consistent with our most fundamental ideals of democracy.

The near collapse of democracy during the interwar period provides some insight into why that may be. It highlighted two related problems with conceiving of democracy merely as a value-neutral procedure. First, although value-neutral procedures are indeed important to democracy, they are insufficient. Liberal constitutionalism—human rights, the separation of powers, and the rule of law—is as essential. Without it, majority or even supermajority rule can become tyrannical and as oppressive as a dictatorship. So-called “illiberal democracy” is a contradiction in terms. A state must also guarantee basic rights, separate and balance its powers, and adhere to the rule of law to be considered a legitimate democracy.

Second, the interwar period exposed the limits of traditional methods of constitutional entrenchment, such as supermajoritarian thresholds. Those methods assume most citizens are fundamentally committed to democracy. That assumption proved wrong. Many citizens are at best weakly committed to democratic principles. Some are illiberal and antidemocratic. Others prioritize partisan interests over democratic principles. Antidemocrats can exploit a complacent or self-interested majority and turn democracy’s value-neutral procedures against its constitutional essentials, leading to democratic suicide.

Post-war constitutions, such as the German Basic Law, were designed with that historical lesson in mind. Among other things, they adopted what is known as “militant democracy” to defend themselves. A militant democracy is a democracy that adopts stronger forms of constitutional entrenchment, in particular explicit unamendability of basic rights, procedures to disqualify parties and candidates, and a more robust role for constitutional courts to check legislative and executive abuses of power, all to prevent democracy’s legal revolution. Militant measures limit political rights to protect democratic constitutional essentials against legal yet illegitimate changes.

Systematically demonstrating an intent to use one’s political rights to overturn democratic constitutional essentials may justify disqualification: a party becomes a candidate for disqualification if its internal structure is antidemocratic or if it endorses abrogating or derogating human rights; an individual becomes a candidate for disqualification if he knowingly assists an insurrection and in so doing violates his oath of public office.

Democrats can be confident in pursuing disqualification in these circumstances. Although some may believe disqualification pre-empts a legitimate democratic choice, the truth is that disqualification may secure the possibility for democratic choosing to happen in the first place.

Of course, it would be better to simply defeat antidemocrats at the ballot box. Yet history shows this does not always work. Democratic backsliding in countries like Hungary and India underscores the inadequacy of a passive defence of democracy. According to Freedom House, 2024 marked the eighteenth consecutive year that democracy declined worldwide. If democrats will not act to defend democracy, then who will?

One lesson from the COVID-19 pandemic is that states adopting multiple levels of defence fared best, notably New Zealand and South Korea. The reason is clear: every defensive measure has inherent weaknesses and blind spots. Relying on a single measure dramatically increases the risk of a threat breaking through, no matter how robust that measure is. Conversely, the layering and networking of different defence mechanisms generates a cumulative effect, significantly reducing the risk of a public health disaster.

Just as a single measure is inadequate in public health, democracy’s self-defence also requires a layered approach. Key strategies include promoting civic education in democratic values and tackling inequality through economic redistribution and strengthened social safety nets. However, it is militant democracy alone that addresses the problem of antidemocrats using legal revolutionary methods to subvert democracy. This recognition is reflected in the design of many post-war constitutions, which were written with the threat of legalistic antidemocrats in mind.

Militant measures work best when executed in a timely and decisive manner, as soon as a party or candidate reveals its true colours. It is far easier to disqualify a marginal antidemocratic party—as West Germany did in 1952 and 1956—than a popular one.

However, militant measures should be used in any case, whether a party is popular or not. It is far better to take action against antidemocrats, even if doing so is countermajoritarian, than it is to passively stand by, as if democratic suicide were democratically kosher.

In the end, what matters is the recognition that democracy extends beyond value-neutral majoritarian procedures. Human rights, the separation of powers, and the rule of law are the bedrock of any functioning democratic society. Today, the phenomena of democratic backsliding and “illiberal democracy” highlight the urgency of learning from democracy’s history. Militant democracy, including its disqualification mechanisms, is vital for countering the legal revolution of our democratic constitutional essentials and preventing democracy’s self-cannibalization. While their deployment must be judicious, measures of militant democracy are both legitimate and indispensable for guaranteeing democracy’s survival.

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How do you solve a problem like gender inequality?

For most women’s rights advocates, the answer is obvious: adopt a human rights framework. At the global level this means using the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by 189 countries, which requires all states parties to themselves respect gender equality, protect against gender discrimination by others, and fulfill those human rights needs (e.g., right to adequate housing) that stand in the way. Women’s Property Rights Under CEDAW addresses those parts of CEDAW that protect, inter alia, women’s equal rights to access land, financial credit, social benefits, inheritance, and all forms of family property. While CEDAW has been subject to many critiques, my co-authored book defends it against criticisms that it privileges the experiences of Western women, fails to address salient issues (such as violence as discrimination), or marginalizes women’s rights. The book also rejects concerns that the CEDAW Committee’s property jurisprudence advances a “neo-liberal” agenda in favor of commodification, privatization, business deregulation, and economic globalization. The Committee’s outputs demonstrate how the Convention has evolved to incorporate domestic violence and nuanced positions on the male/female “binary,” the public/private divide, and the nature and causes of discrimination, subordination, and marginalization. There is a reason that CEDAW is specifically cited as a justification for progressive new laws around the world as well as in hundreds of national judicial opinions that use the treaty or the Committee’s jurisprudence to interpret existing laws and even national constitutions.

Nonetheless, the limitations that CEDAW shares with other global human rights institutions—from UN bureaucratic and fiscal constraints to a weak “managerial” approach to securing state compliance increasingly manipulated by rights-disrespecting states—encourages those seeking gender justice to seek alternatives or complements. The UN’s Development Agenda—specifically Sustainable Development Goal (SDG) 5 to “achieve gender equality and empower all women and girls”—is one of them. Whereas CEDAW relies on a legal binding treaty under which states are obligated to implement at the national level equal rights of women, the SDGs’ 17 pledges are a political, aspirational effort, originating in hortatory General Assembly resolutions. They reflect a results-oriented model for international development for all—and not merely developing states—that set specific policy priorities, help steer action and resources, and use bench-marking backed by data. States’ progress towards achieving gender equality under SDG 5 is measured by nine targets and 14 indicators. This includes, under target 5.1 (to “end all forms of discrimination against all women and girls everywhere”), progress towards achieving indicator 5.1.1 which calls for the adoption of “legal frameworks . . . to promote, enforce, and monitor equality and non-discrimination on the basis of sex.” SDG targets and indicators, subject to periodic review since the SDGs were originally adopted in 2015, are intended to inspire new development thinking. While the SDGs have been criticized for lacking references to human rights, that might be the point.

For governments now caught in bottom-up populist or top-down authoritarian backlashes against human rights, the SDGs offer an appeal not to abstract dignitarian values but to the need to tackle structural obstacles like poverty, hunger, and gender inequality because these hinder economic growth.  The SDGs appeal not only to “rule of law” states long accustomed to rights discourse at the domestic and international levels, but to governments—nearly all of them—that want to attract international financial institutions and market actors. They may particularly appeal to governments leery of “Western-centric” human rights or inclined to resist legally binding instruments that impose “sovereignty costs.” To be sure, the SDGs are not value free. Those who praise the SDGs see them as embodying Amartya Sen’s “human capabilities” approach grounded in the need to equalize life’s chances, satisfy basic needs, and level the playing field while paying greatest interest to those with the greatest need. Some may see them as yet the latest attempt to blue-wash the UN’s (and international financial institutions’) “civilizing mission,” notwithstanding the pretense of “universal” goals. Feminist critics of SDG 5 may emphasize what SDG targets/indicators fail to measure—namely enjoyment of LGBTQ rights, cyber or economic violence, women’s roles in peace-making and conflict, or the root causes of discrimination and violence against women. Those focusing on property rights might point out that while one SDG 5 indicator seeks data on the proportion of women who have rights to agricultural land, there are no requirements to measure many other kinds of property addressed under CEDAW, such as access to financial services, inheritance, or natural resources. The downside to the nostrum that “what gets measured gets done” is that under the SDGs what is not measured may get ignored.

Notwithstanding the SDGs’ weaknesses as yet another flawed attempt to impose global governance by indicators, advocates for gender equality searching for complements to CEDAW might consider their many other strengths:

(1) The SDGs encourage the collection of gender disaggregated data essential for naming gendered equality gaps and for measuring progress to resolve them.

(2) Many of the indicators (like 5.1.1 above) directly relate to lawyers’ efforts for law reform.

(3) The SDGs’ specificity may be useful for determining whether states are in fact taking “all appropriate measures” to combat discrimination against women as required by CEDAW’s Article 2; they may provide signposts that concretize states’ “due diligence.”

(4) The SDGs supply some useful data not typically demanded under CEDAW (such as, under 5.c.1, the level of governments’ resource allocations devoted to advancing gender equality).

(5) They embrace an integrative approach (suggested by the 54 gender-specific indicators apart from those included in SDG 5) that link gender equality to all the other development goals such as the alleviation of poverty, hunger, and environmental degradation.

(6) They provide more specific rationales for educating governments and the public about why gender equality is necessary to, for example, better address the disproportionate gendered effects of climate change.

(7) By calling attention to the costs of gender inequality to individuals, groups of women, to societies, and to the world—and to the resources needed to redress them—the SDGs demonstrate that advancing gender equality in all its dimensions is not free and that states facing massive sums of debt need help to achieve it.

All of these suggest another formidable benefit: the interconnectivity of the SDGs may enable gender equality activists to bridge silo-ed domains within governments and among international organizations and NGOs. They may help convince those who foolishly think that women’s equality is not their problem.

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Understanding the EU’s Law Enforcement Directive

If you ask an average European if they may request Google or Facebook to delete their data, they are likely to refer to the EU General Data Protection Regulation (GDPR). They are also likely to turn to a Data Protection Authority (DPA) or even directly to the domestic courts for that matter.

If you ask the same person if they may request the police to disclose if they are processing their personal data and to have these data (e.g, fingerprints, DNA samples, names, etc.) rectified or deleted, the average European might be more hesitant.

Why is this the case?

When thinking about data protection, most of us relate to the GDPR, which entered into force in May 2016. The GDPR is indeed a significant legal act which, amongst others, triggered almost each public and private entity operating in the EU to strengthen its data protection culture. It also gave more powers to private individuals to enforce their rights through the DPAs and courts. It has furthermore resulted in an increasing number of ground-breaking judgments by the Court of Justice of the European Union (CJEU).

As significant as questions such as “Should Google delete my data from its online search results?”; ‘How should my health record be protected?”; or “What remedies do I have if the misuse of my data concerns several EU Member States?” may be, individuals may not so intuitively ask themselves what happens to their data when processed by the EU Member State law enforcement authorities for the purposes of enforcing criminal law.

Not too many people are aware that in May 2016, next to the GDPR, a second legal instrument—which has remained in the shadows of the GDPR—was adopted. It is namely the EU Law Enforcement Directive (LED). The LED deserves special attention for two main reasons. First, it is the first EU instrument which harmonizes almost all aspects of data protection by police and criminal justice authorities across the EU Member States. Second, it anchors a high number of provisions, which seek to ensure a robust and a modern level of data protection in the criminal law field and which the Member States should have implemented by now in their national laws.

The LED regulates essential questions, such as when and under what conditions may the police collect and further process our personal data and transfer them to other law enforcement authorities outside the EU; when and what information should the law enforcement authorities disclose to the concerned data subjects; how long may these store the data and when are they required to delete them; how should the police differentiate between suspects, victims, and witnesses; how should individuals exercise their data protection rights against the law enforcement authorities; what powers and responsibilities do DPAs have in helping ensure that the LED provisions are fully respected; and when may individuals turn to courts in order to address their data protection grievances. 

Not surprisingly, the LED provisions resemble the GDPR in many aspects, yet there are significant differences. Even similar provisions apply differently in the law enforcement field, as compared to fields such as online commence, due to the peculiarities of the criminal law sector. The national implementations add another level of complexity to the application of its provisions.

Hence, it comes as no surprise that individuals, lawyers, police officers, prosecutors, prison authorities, DPA officers, judges, and academics need guidance on the interpretation and application of the LED provisions. Our LED Commentary contains a meticulous analysis of each and every article of the LED, including practical examples and examples from the implementation of each provision into national law, as well as relevant CJEU case law which interprets a growing number of LED provisions. Last but not least, the volume contains three special chapters, in addition to the article-by-article analysis of the LED. First, there is a dedicated chapter on the criminal law cooperation between the EU Member States and UK after Brexit, highlighting the data protection-related aspects of this cooperation. Second, the volume features a chapter on the role of the Council of Europe and  the case law of the European Court of Human Rights, which dates back to decades preceding the entry into force of the LED and which provides useful guidance about the interpretation of the LED. Third, due to the fact that the LED is a directive and not a regulation, the topic of the national implementations is a central one. It is therefore also tackled in a separate chapter, in addition to the examples from national law examined in each article analysis.

The contributors to the volume are an international team of renowned data protection experts in the field, who have been working especially on criminal law topics. They have included their practical experience, knowledge of national legislation, and data protection expertise, providing an in-depth analysis of each provision, inviting their broad and international audience to use the knowledge generated by this volume in order to contribute to the high level of protection in the criminal law field.

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Catch-22: exploring the escape routes for Gazans

Almost as numerous as the missiles and rockets currently flying between Israel and Gaza are the accusations of war crimes, i.e. serious violations of international humanitarian law (IHL): attacks directed against civilians, hostage taking, indiscriminate attacks, disproportionate attacks, attacks on hospitals, violence aimed at spreading terror among the civilian population, starvation, collective punishment, and more. “Crimes against international law are committed by men, not by abstract entities,” but attributing these colossal human sufferings solely or primarily to the criminal behaviour of individuals downplays the serious, complex structural problems that stand behind these individuals. As the UN Secretary General has reminded us recently, war crimes do not “happen in a vacuum.” Even though structural problems do not justify individuals in committing war crimes which must be prosecuted, their prosecution only addresses the symptoms, and only imperfectly, without curing the disease, which requires remedies from other parts of international law. This may be illustrated by exploring the escape routes for the civilians in Gaza who are under heavy bombardment at the time of writing.

On 13 October 2023, Israel called for 1.1 million Gazans to evacuate to Southern Gaza in anticipation of military operation in Gaza City. Some were led onto so-called “safe routes” that were bombed. Others who reached Southern Gaza found themselves still under continuous bombardment. Those who have stayed or returned after fleeing because of the dangerous journey were subject to further bombing, such as the Jabalia refugee camp bombing by Israel, which claims to target senior Hamas leaders following warnings to evacuate civilians since 13 October 2023.

The predominant approach to analyse all these is through the lens of IHL and war crimes, which can connect atrocities to individuals with human faces to assuage the urgent emotional need for accountability. As the UN has observed, the Jabalia refugee camp bombing could amount to the war crime of disproportionate attack for as the ICRC commented, “[i]ncidental losses and damages should never be extensive.” Israel’s expectation that civilians should have vacated the camp following its call for evacuation could indicate that the entire camp area was treated as a single military objective, amounting to the war crime of area bombing. A UN expert has also denounced Israel’s call for the evacuation of 1.1 Gazans as a forcible transfer in violation of IHL and therefore, a war crime.

It has been debated whether Israel’s original call for evacuation constitutes a forcible displacement in violation of IHL or an advance warning of attack obliged under IHL. IHL even specifically provides for establishing neutralised zone or hospital and safety zones to shelter civilian from the effects of war, and implicitly contemplates evacuation to a foreign country. The potential legality of these escape options under IHL should not, however, detract from the fundamental questions of why anyone should leave their homes to facilitate a military assault, or face a proportionate attack, or be an “incidental loss,” all allowed by IHL. Exploring the escape routes for the Gazans thus presents a catch-22 dilemma: their immediate needs for safety might be met at the cost of even greater peril in subsequent military escalation. This is a wake-up call for us to look beyond IHL, which accepts the armed conflict as is and regulates the conduct of individuals caught up in it, and more deeply into other bodies of international law regulating the structural conditions that make armed conflict and IHL violations within it possible.

The use of armed force in international relations is generally prohibited by the UN Charter except in self-defence. In the mid-2000s, the International Court of Justice has opined on two occasions, one of which related to specifically Israel and Palestine, that armed attacks not attributable to a state do not trigger the right of self-defence. In light of these holdings, Israel’s continuous claim of self-defence in attacking Gaza may be seen as confirming Palestine’s status as a state under international law. If one traces Israel’s occupation of Gaza back to the six-day war in 1967, where Israel used force to “pre-empt” an armed attack that had not actually occurred, Israel’s continuing occupation of Gaza since then becomes itself a continuing armed attack which entitles Palestine to the right of self-defence. Even if Hamas’ 7 October 2023 attack in Israel as an act of self-defence was seen as disproportionate, Israel’s right to defend itself against that attack is limited to the extent necessary and proportionate to halt and repel it. And even if bombing Gaza is somehow seen as necessary to halt and repel the continuing rocket attacks from Gaza that break through Israel’s Iron Dome system, the scale and intensity of the bombardment cannot be considered necessary or proportionate to achieve that goal.

The 7 October 2023 attack was conducted against the background of the persistent denial of the Palestinians’ right to self-determination and long-term, gross violations of civil, political, socio-economic, and cultural rights in Palestine. While the latter do not justify any violation of IHL, they create structural conditions that hinder IHL compliance when conflict erupts. Israel’s tight and illegal land, air, and sea blockade on Gaza to control Gazans’ activities was answered by Palestinian militants’ construction of a labyrinth of underground tunnels network as an all-purpose military compound, which in turn renders the commingling between militants and civilians almost inevitable. Airstrikes by Israel in the tiny, crowded, and sealed Gaza Strip then tend to cause extremely high civilian casualties, generating deep resentment and fuelling militancy, building momentum for fresh rounds of violence that are pre-disposed to violate the UN Charter and IHL. There is no short-cut to curing these “root causes of recurrent tensions, instability, and protraction of conflict,” which would require transforming the structural conditions by fully respecting, protecting, and promoting the human rights of all concerned in accordance with international human rights law.

The Use of Force against Individuals in War under International Law: A Social Ontological Approach is available on Oxford Scholarship Online via institutional access.

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Supporting communities through society publishing

Of the more than 500 journals OUP publishes, over two-thirds are published in collaboration with learned societies, charitable organisations, and academic institutions. As we transition towards open access (OA), our approach is guided both by the priorities of these communities we work with and our unwavering commitment to publishing trusted research.

The financial returns journals provide to the societies and other organizations we work with support their critical community programmes, as described in the comments and videos below. We carefully consider new journal launches and flips (journals converting to OA from a subscription model) to ensure they provide a sustainable path forward for society-owned OA journals, ensuring societies can fund their community-based activities well into the future.

In this blog post, we hear from a selection of societies and editors-in-chief on the benefits of OA publishing for their respective research fields and communities, and details of activities and programmes supported by their publications.

Elise Kuurstra, Executive Director of the Federation of European Microbiological Societies (FEMS)

At the Federation of European Microbiological Societies (FEMS), we have spent a lot of time over the last few years grappling with the best way forward in terms of the open access future of our journals. Microbiology is such an important discipline for understanding and improving both human health and the health of the environment, our food supply, our biotechnology, the world’s ecosystems, and much more. Researchers (as well as many of those funding the research) really want to be able to share this important work as widely as possible. As an organisation run by the microbiology community, for the microbiology community, it is important for us to provide access to the science as well as the publishing opportunities that researchers are increasingly requesting.

We are excited that for 2024, all but one of our journals is going to be to fully OA, making everything we publish in those journals freely accessible to anyone in the world with access to the internet. It hasn’t been an easy decision: it means that our journals will likely generate significantly less surplus revenue (which we use to support our community through a range of activities and events, including direct grants), and it also means that some of our authors who are not part of a “read and publish” deal with OUP and who cannot access university or funder monies to pay the publishing charge may feel unable to publish with us.

That does not sit comfortably with us, and we have engaged in a number of ways to try to lower that financial barrier, including generous discount and waiver policies. We also have kept our flagship, broad scope, subscription journal, FEMS Microbiology Letters, as free-to-publish and intend to grow it to serve those authors who cannot access any funding for OA publishing even more than it does already.

Most importantly, though, we felt that it was a priority to ensure that microbiologists across the world had access to established, high quality journals that were fully OA, as readers—but also as authors. The FEMS journals are providing an established, trustworthy OA home for authors who no longer wish to submit their work to for-profit journals: not only is FEMS not-for-profit, but so is our publisher Oxford University Press. We think it is hugely important to the long-term health of science communication that research is professionally published (with all the checks and balances that entails) and openly accessible—and published for the benefit of science and scientists across the world.

Find out more about the FEMS journals transitioning to open access.

Mike Edmunds, President of the Royal Astronomical Society

Find out more about the RAS journals, Monthly Notices of the Royal Astronomical Society, Geophysical Journal International, and RAS Techniques and Instruments.

Kateryna Makova, Past President of the Society for Molecular Biology & Evolution

Find out more about the SMBE journals, Molecular Biology and Evolution and Genome Biology and Evolution.

Alessia Gimelli, Editor-in-Chief of European Heart Journal – Imaging Methods and Practice

Find out more about European Heart Journal – Imaging Methods and Practice.

Philip Moons, Editor-in-Chief of European Journal of Cardiovascular Nursing

Find out more about European Journal of Cardiovascular Nursing.

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The three empires of our digital world [infographic]

Today, there are three dominant technology, economic, and regulatory powers that can be viewed as digital empires, each with the ambition and capability to shape the global digital order towards their interests and values. Each jurisdiction also holds a different vision for the digital economy, which is reflected in the regulatory models they have adopted. The US has pioneered a largely market-driven model; China a state-driven model; and the EU a rights-driven model. Exploring the nuances and different values undergirding each of these models helps understand conflicts that are unfolding and others that will likely come.

The US, China, and the EU are exporting their domestic regulatory models in an effort to expand their respective spheres of influence, pulling other countries into the orbits of the American, Chinese, or European digital empires. The US’ global influence today manifests through the dominance of its tech companies that exercise private power across the global digital sphere. China’s global influence can be traced to its infrastructure power, where Chinese firms—all with close ties to the Chinese state—are building critical digital network infrastructures in countries near and far. The EU exercises global influence primarily through regulatory power that entrenches European digital norms across the global marketplace. These modes of influence have ingrained American private power, Chinese infrastructure power, and European regulatory power deep into the economic, physical, and legal foundations of foreign societies. Which digital empire will prevail in the contest for global influence remains an open question, yet their contrasting strategies are now increasingly clear.  

Digital societies are at an inflection point. In the midst of unfolding regulatory battles, governments, tech companies, and digital citizens are making important choices that will shape the future ethos of the digital society. It is crucial that we all understand the choices we face as societies and individuals along with the forces that shape those choices, and the immense stakes involved for everyone who uses digital technologies. 

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Much attacked, still standing: how the international legal order is attacked and defended

The invasion of the Russian Federation in Ukraine on 24 January 2022 is certainly not the first, but one of the most blatant attacks on the international legal order and one of the order’s foundational values, namely peace. It has enlivened widespread debates about the end of the liberal world order and, closely related to this, a crisis of international law. But what does this crisis stand for? Does it indicate that a foundational transformation of international law is underway? Or can the international legal order be defended against this and other attacks?

Tracing Value Change in the International Legal Order. Perspectives from Legal and Political Science brings together scholars of international law and international relations to assess these developments through an interdisciplinary exchange. The authors examine the fate of foundational norms of the post-1945 order and of norms representing a widely perceived rise of the international legal order post-1990. These norms include the prohibition of torture, the protection of women’s rights, the prohibition of the use of force, the nonproliferation of nuclear weapons, the value of precaution in sustainability norms, and the anti-impunity norm advanced by the ICC.

Given that international law has always dealt with the tension between maintaining the status quo and adapting to a changing world, we first need to distinguish incremental change from a profound transformation. Methodologically, such a distinction can be built on an assessment of whether essential characteristics of international law are currently changing. Thus, we argue that a foundational paradigm shift occurs if the values protected by international law change in substance or in legal or social validity. Such an interdisciplinary understanding of norm change allows us to transgress the traditional binary legal thinking, to take into account social processes that alter the context in which legal norms operate, and to grasp gradual processes of norm erosion.

First, legally protected values might not change in the formal sense but lose their social validity and thus their power to structure actors behavior. This dimension acknowledges that international norms, understood as social expectations by social scientists, overlap with, but are not identical to, legally codified norms. A current example is the prohibition to use and transfer cluster bombs. On the one hand it is a legally codified norm, on the other a shared social expectation to ban the use of this type of weapon for its detrimental humanitarian impact. While both overlap, they are not identical. As a shared social expectation the norm is even affecting non-parties to the 2008 Convention on Cluster Munitions, i.e., parties that are not bound by the norm in the legal sense. The contributions to our book observe social validity decline for the prohibition of the use of force, where the historically restrictive reading of Article 51 UN-Charter regarding “the inherent right of individual and collective self-defense if an armed attacks occurs” has come under attack after 9/11. Another case in point are women’s rights where a social validity decline occurs due to conservative actors’ successfully hollowing out gender equality norms by means of counterframing techniques or symbolic compliance.

Second, the degree to which a value is legally protected may change (legal validity decline). This category captures, inter alia, cases of erosion or shifting prioritization of values. Our authors identify indications for such an erosion of the value of accountability in relation to certain practices concerning the ICC. Third, a legally protected value may change substantially. Due to processes of fragmentation the value of precaution seems to undergo substantial value change. Still, in view of inherent resilience mechanisms and high hurdles for legal change, many of the norms and their underlying values analysed in our book have so far proven to be robust to change with the most prominent example of the prohibition of torture.

Why are some values more prone to change than others? We studied various attacks of and challenges to foundational values of the international order. These included different types of contestation, such as discursive versus behavioral forms or reactive versus proactive types, often encouraged by a spread of populism and autocratic regimes, changing geopolitical power constellations, transnational crises, and technological change. While the type and intensity of contestation certainly matter, we also find that the role of norm defenders is vital: robust norms have been defended by legal institutions, key states, and non-state actors who uphold normative expectations. Furthermore, legal and institutional structures reinforce norms, for instance by stabilizing legal opinion, legitimizing the claims of norm defenders, or denouncing non-compliance. Here, the systemic and autopoetic character of the international legal order contributes to the robustness of legally protected values.

A core question is which side is willing to invest costs and time for attacking or defending norms and their underlying values. The book finds that the magnitude and frequency of non-compliance with and contestation of legally protected values have grown significantly. It also notes the trend to restrict NGOs from promoting and defending international norms and the trend to delegitimize international courts and other institutions. If this trend continues, a foundational change of the international legal order might be unstoppable.

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The turn to domestic accountability in the shadow of international criminal tribunals

On 21 July, the Special Criminal Court in the Central African Republic concluded its first trial, with three suspects convicted of war crimes and crimes against humanity. A few weeks earlier, Ukrainian investigators launched a war crimes and ecocide investigation into the attack on the Khakovka dam, while dozens of other cases weave their way through the national justice system. On the other side of the Atlantic, Colombia’s Special Jurisdiction for Peace contemplates how to address hundreds of crimes committed during South America’s longest civil war.

What do these three examples spanning three continents have in common? Although they stem from different geo-political contexts of criminality, the proliferation of investigations and trials across Africa, Europe, and the Americas speak to the growing importance of domestic accountability for serious crimes, especially war crimes, crimes against humanity, and genocide. While international justice is still reflexively associated with high-profile international cases, for instance Vladimir Putin’s recent arrest warrant at the International Criminal Court (ICC), most defendants are now prosecuted by national institutions. In fact, even in countries like Ukraine or Colombia, the ICC plays mainly a backup role, with only two to three trials in The Hague at any given time, in stark contrast to the hundreds of cases prosecuted by the former criminal tribunals for Rwanda or the former Yugoslavia.

How did domestic accountability come to eclipse the dream of international criminal tribunals? And what effects does this shift from international to domestic trials have on the global fight against impunity? To answer these questions, my book, International Criminal Tribunals and Domestic Accountability: In The Court’s Shadow, examines the causes, rationales and, consequences of what it calls the complementarity turn—a paradigm shift toward national trials as the ultima ratio or end goal of international criminal justice. Just 25 years after the adoption of the ICC’s founding treaty, domestic justice is celebrated as quicker, cheaper, and more attuned to victims’ needs than proceedings in the far-away courtrooms of The Hague. Many even argue that “the future of international criminal justice is domestic.” And yet, while a sophisticated literature now exists on international criminal tribunals’ shortcomings, scholars are only beginning to study what a turn to domestic accountability means for societies in the midst of violence, emerging from conflict, or confronting a legacy of past abuses. Given international criminal law’s short history, many accountability debates, including about how international and national justice relate to one another, still revolve around assumptions and conventional wisdom.

By drawing on three case studies—Rwanda, Sierra Leone and the Democratic Republic of Congo (DRC)—my book contributes to this growing body of socio-legal scholarship that moves beyond assumptions to analyze what has and has not worked in in specific countries. By comparing how three different international criminal tribunals interacted with domestic justice processes (in addition to the ICC in the DRC, I examine the work of the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda), I assessed the extent to which the three tribunals’ different institutional designs conditioned relations with state officials and civil society in three countries, and ultimately what kind of “shadow effect” the tribunals had on state actors’ ability and willingness to launch genuine and fair prosecutions of serious crimes at the national level. 

The findings confirm that the pursuit of accountability for serious crimes is a complex, context-specific multi-actor process, and no one should expect “quick fixes,” silver bullets, or “optimal” institutional design “solutions to impossible problems.” However, beyond context-specificity, the book draws attention to cross-cutting patterns and how the language of complementarity—a neologism derived from the ICC’s institutional design—has come to shape accountability efforts in the DRC, Rwanda, Sierra Leone, as well as a dozen other countries mentioned in the book. While the ICC’s institutional design vis-à-vis states, known colloquially as complementarity, was expected to spur domestic accountability efforts—setting the ICC apart from other tribunals—20 years of practice has confounded these expectations. Similar to other international criminal tribunals, domestic accountability efforts in countries under the ICC’s jurisdiction have varied considerably, with hundreds of domestic prosecutions in the DRC or Colombia standing in stark contrast to the quasi-absence of national trials in Georgia or Uganda. Although geopolitical realities and social expectations partly explain these divergent national responses, the book draws on the experiences of Sierra Leone, Rwanda and the DRC to suggest that international and national accountability stakeholders, especially donors and NGOs, increasingly prioritize (consensual) capacity-building programs for national magistrates and attorneys while avoiding the political dimensions of state-led justice efforts, including (contentious) questions about who gets selected for domestic prosecution, on what charges, or the fairness of ensuing trials. In questioning the ICC’s dominant interpretation of its jurisdictional powers, I warn that, even in best case scenarios, the Court’s engagement with states may produce “unintended diversionary complementarity,” or selective national prosecutions of lower-ranking suspects and less controversial crimes. Another way of putting this is that, instead of incentivizing—by casting a shadow over domestic accountability efforts—a genuine and fair reckoning with the most serious crimes, ICC interventions may result in selective national prosecutions that entrench the ruling political elite’s power.

In identifying a potential “authoritarian effect” of state-centric domestic accountability initiatives in countries like the DRC and Rwanda, the book raises further questions about the “romanticization” of national responses to atrocity crimes and whether an overly optimistic emphasis on domestic trials qua ultima ratio of the international criminal justice project may promote illiberal tendencies in some contexts. Not only is the book an appeal to other scholars to study whether similar dynamics of “unintended diversionary complementarity” can be observed elsewhere, I identify factors that impede domestic accountability initiatives as well as forward-looking strategies that can enable a balanced approach by the ICC vis-à-vis its national counterparts, for instance greater civil society engagement, prosecutorial cooperation, and trial monitoring. 

However, beyond strategies and institutional design tweaks geared to more dynamic ICC-national relations, my stock-taking of major trends in international criminal justice since the 1990s is an invitation to scholars and civil society to reflect more critically on the rationales and consequences of the much-celebrated complementarity turn, including the cliché that “the future of international criminal justice is domestic.” Although it started after my book was finished, Russia’s 2022 invasion of Ukraine and ongoing accountability debates over the respective roles of domestic, international, and hybrid trials suggest that a relational evaluation of the merits and drawbacks of both international and national accountability initiatives will require further study.

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Building copyright: an absurdist work in progress

Would you say that a(n actual) banana duct-taped to a wall may be protected by copyright? And would you consider a claim that the author of said duct-taped banana copied the work of another artist who had also duct-taped a (plastic) banana to a green cardboard an infringement of the copyright owned by said artist?

These questions are those that, recently, a court in the USA had to answer in the context of litigation that artist Joe Morford had brought against fellow artist Maurizio Cattelan. Morford claimed that Cattelan’s work titled Comedian infringed copyright in the former’s work Banana and Orange. In the end, the judge sided with Cattelan: while Morford’s Banana and Orange would enjoy some copyright protection, Comedian does not incorporate any protectable features of that work.

Not only is the Morford/Cattelan dispute nearly as “absurdist” as Cattelan’s Comedian (as stated by Cattelan himself) is meant to be but it does also illustrate the inherent ambiguity of copyright’s founding principles.

We know that copyright is an intellectual property (IP) right that protects works that are created by an author and are sufficiently original. Yet, nowhere in legislation is it defined what the very object of protection (a “work”) is, who is or what makes one an “author” in a legal sense, or what the concept of originality refers to.

Starting with “work,” international law merely describes what the expression “literary and artistic works” encompasses and hints at the fact that copyright only protects expressions of ideas and not ideas as such (the so called idea/expression dichotomy) when it refers to this notion as requiring a “production.” Like US law, EU and UK law are no more helpful in this regard: no definition is provided of “work.” 

Something more is said in relation to “originality” and “authorship,” at least in EU legislation, though hardly anyone could consider such hints as being akin to a definition. So, originality under EU law (the same is still true for the UK too, as well as the USA) is considered fulfilled where the work at issue is “its author’s own intellectual creation.” 

For authorship, nothing is specified regarding its foundational requirements, that is: what makes one an author. The only hints we may find relate to who may be regarded an author. For example, the Compendium of Practices of the US Copyright Office excludes that “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” may be protected by copyright. Recently, for example, the US Copyright Office refused to register a work that was said to be entirely generated by Artificial Intelligence (AI); the decision has been however appealed and the appeal is pending). The situation is different under UK law, where the Copyright, Designs and Patents Act expressly provides that, for a work that is entirely computer-generated, the person who made the necessary arrangements is deemed to be the author. Insofar as the EU is concerned, it is not entirely clear if an “author” in a legal sense needs to be a natural person, though case law suggests indirectly that in most cases this likely needs to be the case to receive protection under copyright.

Indeed, while we may look in vain for statutory definitions of foundational principles of copyright protection, a lot of what copyright is and protects today stems from case law guidance developed over time. 

If we consider the EU alone, the Court of Justice of the European Union (CJEU) has expressly provided definitions of key concepts like “work” and “originality.” The former has been defined in a case concerning the protectability of the taste of a spreadable cheese under copyright: a “work” is an expression that is “identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.” Turning to originality, what is needed is that the intellectual creation at hand reflects “the author’s personality, which is the case if the author was able to express [their] creative abilities in the production of the work by making free and creative choices.”

In all this, two things are clear. The first is that this process of refinement is still underway, also considering the challenges that generative AI has been posing. The second is that it is precisely this fuzziness that has allowed a right like copyright, which regulates (and should stimulate) the production and dissemination of cultural objects and also serves as an instrument of technological governance, to maintain a central role. Without it, a system originally devised to regulate the circulation of printed books in the aftermath of Gutenberg’s revolutionary invention would have hardly survived, let alone thrived several centuries later. 

So, yes, Cattelan’s “absurdist display of a banana duct-taped to a wall” showcases not only why copyright is—in all likelihood—the most delightful of all the IP rights but also how its own inherent absurdities are needed for its very livelihood… and liveliness.

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The contested nature of religious liberty in today’s America

Several decisions recently made by the United States Supreme Court, along with an escalation in Christian Nationalist rhetoric among right-wing American politicians, have brought the issue of religious liberty to the surface in today’s media. Much of the commentary has focused on a paradox: the concept of religious liberty has increasingly been used to suppress minority or disempowered voices. Such critical commentary, however trenchant, ought not to obscure the need for a reinvigorated idea of religious liberty without its oppressive implications. 

The majority of justices in today’s Court, many of them from Roman Catholic backgrounds, have strengthened protections for religious practice in controversial rulings (not to mention the Court’s overturning of Roe v. Wade). In a case that set a United States Postal Service worker against a supervisor who required him to work on the Sabbath, the Court challenged previously held standards that favored employers in such cases. In a highly publicized case, the Court ruled against a state of Washington schoolboard that disciplined a high school football coach who prayed on the school’s football field with students. The Court also ruled against the city of Boston for refusing to fly the flag of a Christian group over the City Hall when it had allowed other interest groups to do so. In addition, the Court sided with a Colorado web designer who refused, on religious grounds, to create web designs for weddings of same-sex couples. In these cases, as in others, the majority opinion of the Court was expressed as a protection of religious liberty in the face of federal, state, and municipal restrictions on religious practice. 

Seen in the light of a more widespread turn in Republican political discourse (and legislation) toward policies often informed by conservative Christian instruction, including restrictions on LGBTQ rights and abortion, such rulings have cast a shadow over the concept of religious freedom. Editorialists have sometimes pitted the principle of religious freedom against other valuable principles such as equality before the law or simple fairness. 

Critique of religious freedom as a principle has precedents in a line of anthropological, philosophical, and historical writing for the past half century. Many twentieth-century critics, from Michel Foucault to Talal Asad, had voiced a deep suspicion about western, Enlightenment-inflected, eighteenth (or late-seventeenth)-century conceptions of religious liberty or secularism—the Locke to Jefferson celebratory narrative—as complicit in imperial politics, statist discipline, and cultural hubris. Critical race theorists often have dismissed self-congratulatory accounts of American religious liberty as a diversion from the story of racial oppression. Historians of the English state have deconstructed the Anglo-American narrative of liberty as, in the end, a mere tool for a Protestant regime in a nationalist form. 

There is much to be said for such criticisms. Yet there is another aspect of American politics in which a recovery of older—even Lockean or other Enlightenment-driven—notions of freedom of conscience and religious liberty may be helpful. Right-wing American politicians increasingly have voiced explicitly Christian nationalist sentiments. At the most recent Faith and Freedom Coalition gala, Donald Trump claimed that he, as President, had upheld the interests of evangelical Christians in his appointment of pro-Christian justices who, among other rulings, invalidated the central tenets of Roe v. Wade. Trump’s presumed rivals for the Republican nomination for President in 2024, Mike Pence and Ron DeSantis included, were also at the gala, competing for evangelical support by arguing that they stood for genuine Christian values even more resolutely than did the former president. 

As one editorialist recently complained, such evidence of Christian nationalism is hardly limited to high-profile proto-campaign events or presidential politicking. Once allied with free-speech movements and freedom of religion platforms, Christian commentators have sometimes advocated strict speech codes, claims that the United States ought to declare itself to be a Christian nation—with laws that follow suit from that claim—and rejection of Islam as an un-American religion. Movements such as Roman Catholic “integralism” and Protestant “dominionism,” along with books such as Stephen Wolfe’s The Case for Christian Nationalism, published by Canon Press in Moscow, Idaho, advocate for an end to religious liberty and for the establishment of a theological-political order in the United States. Such sentiments suggest the intellectual backdrop for recent turns in the Supreme Court and political electioneering. 

They also suggest that scholarly suspicions ought to be tempered by a consideration of how the discourse of freedom of conscience in early Anglo-America, with all of its Enlightenment presumptions, might offer some clues to a recovery of a robust notion of religious liberty. We do not have to accede to the Anglo-American nationalism and imperialism, or the implicit Protestant biases, or the racism of eighteenth-century proponents of religious liberty to appreciate and reformulate some of their ideas about freedom of conscience and the necessity of distinguishing a nation’s wellbeing from any one religious creed. Such a consideration might at least hint at ways to rebuff the worst of the religious politics that afflicts us today.

_{Featured image: “Supreme Court of the United States – Roberts Court 2022” via Wikimedia Commons, public domain}

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Environmental remediation of sea-dumped chemical weapons: courageously fixing the mistakes of our past

For many generations to come, there is only one place where we can live, and that one place is the Earth. It is therefore imperative that we take care of our home, rather than treating the Earth as if it were given to us for our own selfish exploitation. The impending collapse of some ecosystems is motivating more and more of us to take action in the present to avoid suffering in the future—all the more since much of this suffering will be experienced most intensely by communities that wield relatively less political and economic power. But few will be fully spared. 

It has become axiomatic that the health of the Ocean is essential for the survival of not only marine life itself, but also for the whole Earth. The land and the sea are one. In the ignorance—or naiveté—of the nineteenth and twentieth centuries CE, some thought—and daresay still do think—that the Ocean’s immensity was such that we humans could not harm and exhaust it, the so-called “infinity of the oceans.” 

A myriad of scientific studies has revealed that the Ocean has been seriously impacted by land-based pollution, global warming, overfishing, emissions from vessels, oil spills, and the dumping of industrial waste, radioactive waste, and munitions, including chemical weapons. The nature of this environmental harm is inherently transboundary in nature: although we have created legal delimitations in the Ocean and seas, all things in nature are connected. The marine environment knows no geo-political borders, and we will all have to deal with the degradation of the Earth’s ecosystems in the coming decades and centuries.

It is time for a radically different approach to the Ocean and the living creatures that inhabit it. Instead of a resource to be exploited, we need to regard the Ocean as integral to our survival on Earth —the one place in the Universe where we can live, at least for the foreseeable future. This reconceptualization of our relationship with the Ocean may bring the need to include new legal arrangements to protect it; however, so far, the adoption of legal promises to preserve and protect the Ocean has not led to adequate protection and action on the part of public and private stakeholders. The London Dumping Convention, the United Nations Convention on the Law of the Sea, the Regional Seas Conventions, and customary international law (specifically the principles of prevention, precaution, and cooperation) entail mandatory legal obligations for the protection of the Ocean. These binding legal instruments and principles of law require the cleanup of sea-dumped chemical weapons, not only in areas that are under the sovereignty of states, but in all areas of the Ocean. In addition to their territorial seas and exclusive economic zones, states must avoid a “tragedy of the commons” where all have access and can make use of the high seas, but no one is acting as the caretaker of those areas to preserve them for future generations.

The chemical weapons that were dumped into our Ocean and seas after the world wars of the twentieth century CE have been languishing there, in some cases, for over 100 years with little to no action to environmentally clean them up. Chemical weapons have been dumped in all the areas of the Ocean (except the Antarctic) and also in many seas. Estimates range from 1 to 1.6 million tonnes. Many of them are in shallow waters and regularly wash up on shore or are caught in fishing nets. People are injured every year in accidents involving sea-dumped chemical weapons. Many of the chemical weapons have already contaminated the marine environment. In time, the remaining munition casings will erode, and their toxic contents will be released into the marine ecosystem. It is not yet fully known how devastating the effect will be, but scientists have already observed the contamination of the flora and fauna surrounding chemical weapon dump sites. Sea-dumped chemical weapons are therefore yet another environmental pressure on an already troubled marine environment.

The time for action is long overdue. The problem is a finite one with finite solutions. A worldwide intergovernmental solution might not be realistic, as stakeholders historically have even tried to legally exempt themselves (via international treaty) from being legally obligated to clean up sea-dumped chemical weapons and so far have been unwilling to devote the resources necessary to the remediation of the munitions we know about—not to mention the ones that are yet to be located. Rather, an incremental and iterative process might be more feasible and achievable.

Efforts to clean up sea-dumped chemical weapons could also be seen as a political, financial, and technological challenge. One place to start would be to require off-shore projects to adopt a holistic approach to cleaning the seabed for future projects, rather than avoidance or underwater relocation of the munitions, which can be considered re-dumping. Public entities need to provide subsidies to off-shore ventures to clean up munitions in order to provide economic incentives (necessary in our market economy) for the remediation of the munitions, either in situ or on land. Such subsidies could, for example, take the form of a “bounty” paid for each remediated munition or site. 

An international organisation could serve as a coordinating agency for efforts in this area, such as a centralised database for the location and status of the munitions, a clearing house for best remediation practices, and the administration of a modest, voluntary trust fund to finance further research and operations. A pilot project could be undertaken in the next years to fully remediate a site in the Baltic Sea—an area of particular concern due to the large number of dump sites, the low depth of the water, and the increased economic activity there. Lessons would be learned from such a project and then applied to future cleanup projects. 

These efforts would be undertaken as voluntary cooperation and would be consistent with the legal obligations undertaken by states to preserve and protect the Ocean. In this manner, the taboo that has long been associated with sea-dumped chemical weapons can be lifted, and we can get on with the work of altering the mistakes of our past, so that we can restore the balance of our planet’s Ocean, upon which we all depend for survival.

_{Featured image: Ivan Bandura via Unsplash, public domain}

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International law in quest for justice

One of the stated purposes of the United Nations, according to the UN Charter, is to settle international disputes or adjust situations that threaten international peace “in conformity with the principles of justice and international law.” The Preamble to the Charter refers to the need “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Yet, are justice and international law two different animals and can international law aspire to exist without justice?

A choice between law and justice?

In The Law of the United Nations, Hans Kelsen observed that the announcement of the dual respect for justice and international law is problematic: either “justice” and “international law” are the same, making one of them redundant, or they are distinct concepts. If they are indeed distinct, which seems more plausible, there can be situations in which the two contradict each other. The organs of the United Nations called upon to apply these provisions, and in particular the International Court of Justice (ICJ), as the United Nations’ “principal judicial organ,” may face a dilemma between prioritizing international law or justice, which, for Kelsen, undermines adherence to international law. The Court is required by its Statute to decide disputes “in accordance with international law” but the Statute is agnostic about “justice.” Does this then mean that the Court has to consistently prioritize the application of international law over justice?

Passing over the vexed semantics of “justice” in a heterogeneous multicultural legal system, to assume that international law can be applied at the expense of justice is a contradiction in terms. “Justice” is one of the objectives of the international legal order. The UN Charter raises justice to the same level as peace and security, when it makes provision for dispute settlement that does not endanger “international peace and security, and justice.” If the ability of international law to do justice is often questioned, its duty to do so rarely is. International law cannot be separated from the obligation to do justice. If it does not do justice, how, in the long run, do we hope to keep a functioning international legal order? The dilemma between prioritizing international law or justice is therefore moot—the ICJ applies international law to do justice.

The role of equity

At this juncture, a practical question arises: how can the adjudicator apply international law to do justice, if in a concrete case law and justice appear to oppose each other? International law offers the necessary tools to reach a just resolution of a dispute. Equity—that is, the legal concept of equity, as opposed to its extra-legal siblings (philosophical, theological, etc.)—is a crucial part of this equation. Its very purpose is to do justice. In the words of Umpire Plumley in the 1903 Aroa Mines case, “[t]he way is equity, the end is justice.” Justice is the rationale and the ethical foundation of equity. Equity is the link that tethers international law to justice. 

A legal concept of long pedigree, equity is constantly incorporated into the international legal system and is applied qua international law. Protean and chameleon-like, equity is, among others, the Aristotelian corrective that requires the adjudicator to be mindful of the circumstances of the particular case or to soften the harshness of strict law to do justice. Equity is present in the reasoning of international courts and tribunals not only when called by its proper name but also when cloaked under its aliases and variations: good faith, reasonableness, unjust enrichment, estoppel, acquiescence, and the clean hands doctrine—to name but a few. Human rights too originate in equity.

The international legal system is infused with equity for an additional reason: the equitable innovations of the past have tended to become today’s hard law. For example, several equitable Roman remedies are part of contemporary international law. The ability of present-day international courts and tribunals to issue provisional measures reflects the equitable Roman remedy of the interdict (akin to the English Chancery’s injunction). Another Roman equitable remedy, restitutio in integrum, is part of today’s law of state responsibility. Roman equity was at the root of English equity, while the later Roman codifications subsumed praetorian equity and inspired the civil law systems. 

When an international court or tribunal applies contemporary international law that incorporates equity, say it orders provisional measures, it no longer needs to rely on equity but rather on the specific provision of its statute or procedural rules authorising it to do so. Equity is present in the legal rule, but the adjudicator does not rely directly upon it. Equity’s transformation into hard law makes it lose flexibility, and this loss is compensated by new equity that will probably become tomorrow’s hard law.

We can agree that international law is an imperfect system—in many ways it is flawed. Yet, imperfect and flawed as it may be, it still needs to aspire to justice. In dispute settlement, international law has the potential to fulfil an important task and do justice. Equity is key to unlocking this potential for justice and should not be met with fear, but rather embraced.

_{Featured image: Luca Dugaro via Unsplash (public domain)}

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Much ado about nothing? The US Supreme Court’s Warhol opinion

Despite the title of this post, I am not a Shakespeare fan; far from it. My only interest in him is in the wonderful derivative works he inspired, such as Hector Berlioz’s opéra comique Beatrice and Benedict, and other derivative works based on Romeo and Juliet, such as Berlioz’s dramatic symphony Roméo et Juliette. Shakespeare also inspired Prokofiev’s ballet Romeo and Juliet and Felix Mendelssohn’s Overture to a Midsummer Night’s Dream. These last two works can’t be considered derivative works in the copyright sense because they don’t incorporate any of Shakespeare’s text, any more than Modest Mussorgsky’s Pictures at an Exhibition can be considered a derivative work of the exhibition of works by architect and painter Viktor Hartmann put on at the Imperial Academy of Arts in Saint Petersburg that Mussorgksy takes us on a musical tour of. Richard Strauss’ Don Quixote is another example of a musical work inspired by another art form (there a novel), but which is not a derivative work because it does not contain any expressive material from the original. Artists have always inspired other artists and may it remain so forever, without copyright law interfering.

The right to prepare derivative works was at the heart of the United States Supreme Court’s 18 May 2023 opinion in The Andy Warhol Foundation v. Goldsmith. Warhol had, under license from Vanity Fair, created an authorized derivative work of Lynn Goldsmith’s photograph of the Artist Formerly Known as Prince, for a magazine article about Prince. The license was for a one-time use only. After Prince (and Warhol’s) death, another magazine licensed a different colored version of Warhol’s adaptation of Goldsmith’s work, but without a license from her. The Foundation then sued Goldsmith for a declaratory judgment that its use was a fair use, and therefore not infringing. The trial court ruled in the Foundation’s favor, but the court of appeals reversed, ruling in Goldsmith’s favor.

The Supreme Court agreed with the court of appeals, but on a very truncated review of just the first of the four factors, the nature and purpose of the use. This truncated review renders the opinion of limited future value, a conclusion fortified by the many references in the opinion to it being narrow. But the case isn’t entirely much ado about nothing. The Court rejected, authoritatively, the Foundation’s argument that transformativeness can be found in the derivative author’s subjective intent. The Court also showed solicitude for the original author’s right to authorize third party derivative works. In the end, though, the case came down to a conclusion, factual or not, that Warhol simply hadn’t changed enough of Goldsmith’s work, at least in the context of an unlicensed use for the same market. Since the Court left open the possibility that the same Warhol work might be fair if displayed in a museum, one does wonder why the Court took the case, since denying certiorari would have had the same result. 

Future guidance for fair use disputes

Is there any future guidance in the opinion about other fair use disputes, general guidance aside from a judgment that in this case Warhol didn’t change enough to escape the clutches of the right to prepare derivative works? Yes, but not in the majority opinion, but rather in Justice Gorsuch’s concurring opinion for himself and Justice Jackson. The central argument made by the Foundation was that the first factor’s transformative standard could be met by a subjective different purpose. The majority rejected this, relying on the Second Circuit’s analysis. Justice Gorsuch offered more:

Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1) (emphases added). By its terms, the law trains our attention on the particular use under challenge. And it asks us to assess whether the purpose and character of that use is different from (and thus complements) or is the same as (and thus substitutes for) a copyrighted work. It’s a comparatively modest inquiry focused on how and for what reason a person is using a copyrighted work in the world, not on the moods of any artist or the aesthetic quality of any creation. 

This makes perfect sense from a practical, evidentiary angle. Allowing subjective intentions to prevail would in cases such as Warhol’s be impossible since he said nothing about his purpose. Silence is just silence. In other cases, such as the appropriation artist Richard Prince, his purported purposes are many and contradictory, which is unhelpful to bench and jury trials alike. In the future then, fair use cases, at least involving appropriation art, will be simpler, with fewer experts waxing philosophically about deep subjective meaning, and the trier of fact simply comparing the objective appearance of the works. That’s a blessing. 

_{Featured image via Unsplash (public domain)}

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Is a 15-week limit on abortion an acceptable compromise?

A recent opinion piece by George F. Will, “Ambivalent about abortion, the American middle begins to find its voice” in the Washington Post made the startling claim that the overturning of Roe v. Wade (Dobbs v. Jackson Women’s Health Organization, 2022) has resulted in “a partial healing of the nation’s civic culture.” One might think exactly the reverse. The Dobbs decision energized voters, especially women and young people, resulting in numerous Republican electoral defeats across the country. However, Will argues that the return of abortion policy to the states gives voters the opportunity of choosing moderate restrictions on abortion. Since most Americans support early abortion while opposing late-gestation abortion, Will thinks that a 15-week ban on abortion would be an acceptable compromise.

Why 15 weeks? Two reasons can be given. Almost all abortions in the US—93%—occur within the first 15 weeks of pregnancy. For this reason, making abortion illegal after 15 weeks would not, it would seem, impose serious burdens on most people seeking abortions. 

Another reason is that several European countries limit abortion on request to the first trimester, leading some US lawmakers to suggest that a 15-week ban would bring our abortion law in line with theirs. This is disingenuous, to say the least. While elective abortion is limited in some European countries, it is not banned afterwards, but is allowed on other grounds, including economic or social reasons, or a threat to the woman’s physical or mental health. Moreover, in most European countries, patients do not have to pay for abortion; it is covered under universal health coverage. The fact is that the trend in Europe has not been to limit abortion, but to expand access to it. Countries in Europe “… have removed bans, increased abortion’s legality and taken steps to ensure laws and policies on abortion are guided by public health evidence and clinical best practices.”

Were states to guarantee access to abortion prior to 15 weeks, a 15-week ban might be acceptable. However, even before Dobbs, many women in the US lacked access to abortion, due to a dearth of providers, especially in rural areas. They often had to travel many miles to find an abortion clinic, which meant that they had to arrange childcare if they have other children or take time off work. Delay is also caused by the need to raise money for an abortion, which is not paid for by Medicaid in most states, except in cases of rape, incest, or a life-threatening condition. To be sure, even if there were none of these roadblocks, some women would still not be able to have early abortions because they do not know that they are pregnant, due to youth, being menopausal, chronic obesity, or a lack of pregnancy symptoms. Any time limits will pose hardships for some people. But if access to early abortions were guaranteed, a compromise on a 15-week limit might be worth it.

I suspect that time-limit advocates are not particularly interested in making sure that women who have abortions get them early in pregnancy. They want to place roadblocks in the way of getting abortions, full stop. That these roadblocks increase the numbers of late abortions is of little concern to them, however much they wring their hands over late abortions. Abortion can be reduced by reducing the number of unwanted pregnancies, something that has been shown to be achieved by access to contraceptives and science-based sex education in the schools. Remember when pro-lifers emphasized those methods? Me neither. 

My second concern is with abortions sought after 15 weeks. The reason for a late abortion may be that the woman has a medical condition that has not developed, or has not been detected, until later in pregnancy. In such cases, the pregnancy is almost always a wanted pregnancy, and the decision to terminate imposes a tragic choice.

It may be responded that all states allow abortions to be performed when this is necessary to save the pregnant woman’s life, and many allow for abortions to protect her from a serious health risk. The problem is that these exceptions conflict with standard medical care, especially in the case of miscarriage. Once the woman has begun to miscarry, the failure to remove the fetus is likely to cause her sepsis, which can be life-threatening. However, in states with restrictive abortion laws, doctors cannot perform an immediate abortion, which is the standard of care in such situations. They have to wait until her death is imminent and, in some states, they cannot remove the fetus until its heart stops. 

Ireland’s restrictive abortion law was repealed after a woman who was denied an abortion during a miscarriage died from septicemia. To the best of my knowledge, no woman in the US has died as a result of restrictive abortion laws, but some have come close. An OB-GYN in San Antonio had to wait until the fetal heartbeat stopped to treat a miscarrying patient who developed a dangerous womb infection. The delay caused complications which required her to have surgery, lose multiple liters of blood, and be put on a breathing machine. Texas law essentially requires doctors to commit malpractice.

Conservatives often portray those in the pro-choice camp as advocating abortion until the day of delivery, for trivial reasons. This is deeply unfair. If they want us to compromise on time limits, they should be willing to guarantee access to abortion before 15 weeks. They should be willing to compromise on pregnancy prevention through contraception and sex education. And they should agree to drop all restrictions on late-term abortions that make legislators, rather than doctors, in charge of deciding what is appropriate medical care for their patients.

_{Featured image: Gayatri Malhotra via Unsplash (public domain)}

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Twenty years on: Luis Moreno Ocampo on the International Criminal Court

In 2003, 78 nations gave me the authority, as the Chief Prosecutor, to trigger the International Criminal Court (ICC) intervention in their territory.  

I had to decide for the first time when and where to trigger the ICC. Should the Court open investigations in the Democratic Republic of Congo or Colombia? Did Prime Minister Blair’s decision to intervene in Iraq allow the Court to open an investigation against President Bush? 

We had no benchmark. Political leaders in post-Nazi Germany, Yugoslavia, and Rwanda decided the international criminal intervention in those nations. The Rome Statute created a different model. My mission was to establish an Office of the Prosecutor to implement a judicial mandate in what was a political field.

Each of our decisions to launch the Court intervention was in strict compliance with the law and confirmed by the judges. However, they triggered heated debates. No single framework exists to harmonize justice demands, political decisions, military operations, humanitarian assistance, peace negotiations, and court interventions. I perceived the lack of a common criterion to manage transnational violence.

War and Justice in the 21^st Century: an overview

Since the end of my tenure in 2012, I have been working on a book to transform my unique experience into valuable data. I was a decision-maker and a privileged witness. I don’t have a thesis to prove. The book describes our office standards, the facts, and the role of other actors in 17 different situations under preliminary examination. 

I aim to contribute to the study of an innovative and unprecedented legal system, facilitate a dialogue between experts and scholars, discuss new tactics to manage conflicts, and improve the teaching of international law and international relations. 

The book’s first part introduces the Rome Statute and its relationship with the War on Terror, the circumstances of my appointment, and our strategy to build the Office of the Prosecutor’s foundations. Taking the Jus ad Bellum classification as an analogy, I proposed to label the norms defining the intervention of International Criminal justice into sovereign states as Jus ad Curiam. 

Second part: our decisions to open investigations in four different states parties (Democratic Republic of Congo, Uganda, Central African Republic, and Kenya), the discussion on peace negotiations and the interest of justice, and our preliminary examinations in nine situations under our treaty jurisdiction (Venezuela, UK personnel involved in Iraq, Palestine, Guinea, Nigeria, Honduras, Colombia, Korea, and Georgia).

Third part: the ICC’s interaction with the UN Security Council in states non-parties like Iraq, Sudan, Libya, Ivory Coast, and Syria, and with the US in the Afghanistan situation. 

The fourth part includes a summary of the Office of the Prosecutor’s Jus ad Curiam practice, the War on Terror’s policy redefining jus ad Bellum, including military interventions in countries not at war with the US, and the UN Security Council’s jus ad Curiam and jus ad Bellum decisions.  

I also offer my observations: the outcomes of normative conflicts are in a consequential blind spot.

No chaos, just complexity: a fragmented international legal system

The operational international legal order includes multiple subsystems working simultaneously, conferring power to various authorities, and prescribing different and sometimes opposite solutions to the same case. 

Anne Marie Slaughter proposed a “New World order” based on networks and David Kennedy explained how decisions are made: “The internationalization of politics means the legalization of politics. Every agent of the state, of the city, of the region, acts and interacts on the basis of delegated powers, through the instruments of decision and rule and judgment.” 

Still, there is no comprehensive academic field integrating the different authorities’ decisions. International relations, political science, international law, international criminal law, humanitarian law, and military strategy scholars analyze variables in isolation. They deny fundamental problems to protect their field boundaries. Knowledge is produced within “echo chambers” according to nationality and expertise. 

The International Law Commission’s report on Fragmentation described the evolution “from a world fragmented into sovereign States,” integrated under the UN Security Council on international peace and security “to a world fragmented into specialized ‘regimes.’”

The Rome Statute and the War on Terror are the twenty-first century “specialized regimes” to manage international crimes and terrorism. They are two antagonistic legal models conferring power to different authorities and influencing states and the UN Security Council decisions. 

Quoting French Professor Mireille Delmas-Marty, “these are indeed legal, and therefore normative, interactions.” There is no chaos, just complexity. 

From my office at The Hague, I perceived how other authorities, following their interests, selected the norms to apply. Perpetrators of massive atrocities followed instructions and rules, and diplomats and intelligence services worked to consecrate their impunity. 

The crimes examined during my tenure were not the direct consequence of individual cruelty or the lack of respect for the norms. The leaders’ commands triggered institutions to act. 

The decision to launch the War on Terror promoted efforts to protect the US troops and its allies and became a critical obstacle to international justice. The aggression crime committed in Ukraine exacerbated the problem.

Obstructing justice would be regarded as a crime at the national level. Still, political leaders have the legal authority to interfere with criminal justice in the international field and to instruct diplomats and intelligence agencies to do it. 

War crimes, crimes against humanity, and aggression crimes are the consequence of a fragmented and contradictory international legal system. There is a failure by design.

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