magnify
Home 2018 December

Happy New Year and Most Read Posts of 2018!

Published on December 31, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

I would like to wish our readers a very Happy 2019! Before we close out 2018, I would like to set out our most read posts of the year. These give a snapshot of the some of the key developments in international law over the course of the year, and/or of key incidents in international affairs with consequences for international law.

The top 10 posts are presented here with the numbers 11 to 20 below the fold.

Many thanks to all of our contributors in 2018, and, to you, our readers 

1) Diane Desierto, Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the Philippines’ Drug War(Aug. 2018)

2) Marko Milanovic, The Syria Strikes: Still Clearly Illegal, (April 2018)

3) Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression(Dec. 2017)

4) Marko Milanovic, Palestine Sues the United States in the ICJ re Jerusalem Embassy, (Sept. 2018)

5) Leila N. Sadat, Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, (June, 2018)

6) Marc Weller, An International Use of Force in Salisbury?, (Mar. 2018)

7) Dapo Akande, Ecuador Seeks to Confer Diplomatic Status on Julian Assange: Does this Oblige the UK to Allow Him to Leave the Embassy & Is the Matter Headed to the ICJ?(Jan. 2018)

8) Monica Hakimi, The Attack on Syria and the Contemporary Jus ad Bellum, (April 2018)

9) Joseph Weiler, Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities, (Nov. 2018)

10) Koldo Casla, Supreme Court of Spain: UN Treaty Body individual decisions are legally binding(Aug. 2018) Read the rest of this entry…

Filed under: EJIL
 

Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part II)

Published on December 29, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

The potential role of the planetary boundary for biosphere integrity

The planetary boundary framework was originally developed to identify the key global processes that are essential for regulating the functioning of the Earth System and create what are effectively safe ‘buffer zones’ that might prevent humanity from crossing dangerous biophysical thresholds or tipping points. In its current version, the framework describes nine such boundaries, ranging from climate change to atmospheric aerosol loading and including freshwater use, land-use change, stratospheric ozone depletion, introduction of novel entities to the environment, ocean acidification, biogeochemical flows and, crucially, biosphere integrity. The fact that the boundaries represent the limits of what the authors call the ‘safe operating space’ for human development on a changing planet has attracted immediate interest from political scientists working on Earth System governance, and some legal scholars have progressively started to consider the concept as potentially useful for international environmental law as well.

Ever since the first elaboration of the nine planetary boundaries, the very possibility of identifying a global boundary for biosphere integrity resulting from changes in regional and local biodiversity has appeared as one of the most contentious aspects of the framework. As a result of intensive discussions to which various research communities contributed, the description contained in the original planetary boundaries paper was in fact updated in 2015,in order to capture the two key roles of the biosphere in the Earth System, and namely: (a) the importance of genetic diversity in maintaining and building its resilience (i.e. through the use of global extinction rates); and (b) the contribution of organisms’ functional traits to Earth System functioning (i.e. through the so-called Biodiversity Intactness Index). In doing so, the planetary boundary framework was also expanded to recognize the importance of sub-global boundaries that must align with the global boundary definition for biosphere integrity, owing to the fact that the ideal unit of analysis for changes in elements of biodiversity is usually situated at the level of biomes and ecosystems.

From this perspective, and subject to further scientific advancements and new data becoming available, a planetary boundary for biosphere integrity could potentially represent a very useful tool for international biodiversity law. On the one hand, because the national allocation of the planetary ‘safe operating space’ would recognize and make explicit the above-mentioned link between a global boundary and the regional, national and sub-national operating scales at which biodiversity loss occurs. On the other, and as a consequence, because the incorporation in international biodiversity law of a global boundary that might be quantifiable through critical values for one or more control variables could in theory enable changes to biosphere integrity to be used as an indicator of State responsibility, providing a powerful empirical benchmark against which to assess the respect of legal obligations relating to biodiversity (or, at the very least, a set of more precise, science-based objectives and targets that it would be more difficult for States to ignore).

The nine planetary boundaries and the status of their control variables. Source: Steffen et al. (2015)

For the purpose of the present analysis, it is less important what the control variables should be, and it should indeed be noted that identifying suitable ones for biosphere integrity remains a daunting and still hotly debated task. What is crucial is that the concept of a measurable planetary boundary for biosphere integrity clearly suggests that the related biophysical limits, once incorporated in international law, could play an important role in mitigating the procedural and/or non-enforceable nature of most international obligations relating to biodiversity within national jurisdiction (for example, the requirement to develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity set in Article 6(a) of the CBD, or the obligations for in-situ conservation listed in Article 8).

Read the rest of this entry…

 
Comments Off on Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part II)

Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part I)

Published on December 29, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Introduction

The recent publication of the UN Secretary-General’s Report on ‘Gaps in International Environmental Law’ comes at a particularly critical juncture for the protection of the world’s biodiversity. The Report was released just days after the conclusion of the 14thConference of the Parties to the Convention on Biological Diversity (CBD), which has expressed deep concern about countries’ lack of progress in the achievement of the Convention’s Aichi Biodiversity Targets by 2020. Furthermore, it closely follows a number of other urgent calls for action, including those contained in WWF’s Living Planet Report and in the four bleak regional assessments conducted by the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES).

The widely anticipated failure of the CBD’s Strategic Plan for Biodiversity 2011-2020 has been used as a starting point by some to advocate for a renewed ‘global deal for nature’. The Gaps Report itself, beyond its endorsement of a future Global Pact for the Environment, is especially scathing in its ‘indictment’ of biodiversity-related instruments in international law. The Report builds on years of scholarly debates in this field and focuses on, inter alia, the absence of a coherent structure of international biodiversity law, the lack of binding commitments and poor national implementation of voluntary ones, inadequate integration of biodiversity into other law- and policy-making arenas, insufficient use of ecosystem-based approaches to conservation, and lack of attention paid to interconnectedness of ecosystems within and outside protected areas.

Recognizing the need for innovative legal instruments that can capture the complexity of ecological relationships and mitigate the pervasiveness of anthropogenic interference on the Earth’s biodiversity, the international community has indeed embarked on the preparation of a post-2020 global biodiversity framework, as well as on the negotiation of a new treaty applying to biodiversity beyond national jurisdiction. What is arguably missing in both the Gaps Report and these wider intergovernmental efforts, however, is a thorough analysis of the underlying reasons that have prevented existing international biodiversity law from being effective in curbing global extinction rates and unsustainable patterns of ecosystem destruction and degradation, despite decades of legal developments and a robust apparatus of subsidiary bodies tasked with providing scientific and technical advice. Without a similar analysis, the risk of future biodiversity regimes falling back on business-as-usual approaches will probably remain very high.

In this post, I first describe one particularly problematic aspect of international biodiversity law, namely the difficulty of identifying substantive obligations (i.e. obligations of result) applying to biodiversity located within national jurisdiction despite increasing awareness about the interconnectedness of ecological processes occurring at different spatial scales. Secondly, I suggest the potential of the planetary boundaries framework first developed in 2009 by Rockström and others to provide quantifiable measures of ‘biosphere integrity’ that can help define these international obligations. Finally, I propose four ways in which international biodiversity law (including its institutional arrangements) could be used to incorporate a planetary boundary for biosphere integrity.

Read the rest of this entry…

 
Comments Off on Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part I)

Paris Agreement Regained or Lost? Initial Thoughts

Published on December 28, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Headlines recently announced the end of a critical climate summit in Katowice, Poland.  Katowice had played host to the 24thConference of the Parties meeting (COP24) under the United Nations Framework Convention on Climate Change (UNFCCC).  The summit was billed as a “make or break” moment for the world community. Three years had passed after world leaders emerged from climate negotiations in France with the Paris Agreement.  After the initial euphoria wore off, reality set in that while climate change was accelerating, mitigation efforts under the Paris Agreement were falling behind schedule.  And the city of Paris itself has become a powerful symbol for the difficulties faced by the Katowice negotiators.  Three short years after being the cradle of a new hope, French measures to implement the Paris Agreement gave rise to the Yellow Vest protests. These protests eventually laid siege to the city of Paris itself.  The picture that emerged: the Arc de Triomphe engulfed in smokeas a signature policy initiative by the French government to implement the Paris Agreement went up in flames. 

So – how successful was COP24? Did it succeed in rescuing the Paris Agreement? Or is Paris in ruins?

Read the rest of this entry…

Filed under: EJIL Analysis
 
Comments Off on Paris Agreement Regained or Lost? Initial Thoughts

The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

 
Comments Off on The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

2018 Favourite Readings: Values, Identity, and Growth in the Global Economy

Published on December 26, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we give you Diane Desierto’s favourites.

Why do we have a global economy, what is it for, what comprises it, and to what ends and purposes do we regulate it?  Somewhat unconsciously, my favourite books for 2018 directly or indirectly related to these questions. Throughout 2018, I relished reading (or rereading, in some of these) Hersch Lauterpacht’s classic International Law and Human Rights (F.A. Praeger Press, 1950), followed by Louis Meuleman’s Metagovernance for Sustainability: A Framework for Implementing the Sustainable Development Goals (Routledge, 2018); David Pilling’s The Growth Delusion: Wealth, Poverty, and the Well-Being of Nations (Bloomsbury Publishing, 2018), Mariana Mazzucato’s The Value of Everything: Making and Taking in the Global Economy (Penguin Random House UK, 2018), and Francis Fukuyama’s Identity: The Demand for Dignity and the Politics of Resentment (Farrar, Straus, and Giroux, 2018).  These books proved illuminating this year in my ongoing thematic and granular search for answers to the above questions.

Hersch Lauterpacht’s International Law and Human Rights is an apt reminder of how modern international law, at its inception, fundamentally serves the ends and aims of human rights in free and just societies. Lauterpacht makes his argument in three parts – showing in The Rights of Man and the Law of Nations that the concept of international peace is inseparable from the vindication of human dignity through human rights; elaborating human rights provisions central to the UN Charter in Human Rights under the Charter of the United Nations; and concluding with a detailed set of recommendations (recall, this was long before the development of the major human rights treaties today) for the International Bill of the Rights of Man.  Read the rest of this entry…

 
Comments Off on 2018 Favourite Readings: Values, Identity, and Growth in the Global Economy

A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

Published on December 24, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Last week the European Court of Human Rights published a press release which is worth flagging for readers, with an update on litigation concerning various aspects of the conflict in Ukraine pending before it. As things stand, there are more than 4000 individual cases before the Court with a nexus to the conflict, whether in Eastern Ukraine or Crimea. There are currently five pending interstate cases between Ukraine and Russia, the latest one filed in November, concerning the Kerch Strait incident (see this prior post by James Kraska) and in which the Court has indicted interim measures. The Court has now decided to adjourn many of the individual cases, pending its decision in the interstate cases on the applicability of the Convention, specifically with regard to the Article 1 ECHR jurisdiction of both Ukraine and Russia; for a discussion of this issue, see my recent ICLQ article with Tatjana Papic on the applicability of the ECHR in contested territories.

The full press release is reproduced below.

Read the rest of this entry…

 

Announcements: CfA Constitutional Court Review; UN Audiovisual Library of International Law; CfR – Global Study on the Impact of the UN Human Rights Treaty System

Published on December 23, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

1. Call for Abstracts: Constitutional Court Review. The editors of the Constitutional Court Review are issuing an open call for abstracts and articles for the Constitutional Court Review X (2019). The Constitutional Court Review is the only internationally accredited journal on the work of South Africa’s Highest Court. The Constitutional Court Review Conference/Workshop allows authors and editors to read one another’s work and engage initial drafts in an intimate environment. For those persons unfamiliar with the journal, please see here to view all eight published volumes and find out a little more on who we are and what we do. CCR I through CCR VIII are online, open access and freely downloadable. (CCR IX will be housed online in 2019.) The journal is also freely available on SAFLII (the Southern African Legal Information Institute database), and can be accessed through Heinonline and Sabinet. 

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms. Patrícia Galvão Teles on “Obligations and Rights Erga Omnes in the case-law of the International Court of Justice” and Mr. Ki-Gab Park on “Lex Ferenda in International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Researchers: Global Study on the Impact of the UN Human Rights Treaty System on the Domestic Level. The UN human right treaty system is widely believed to be at the core of the international human rights project. But exactly what evidence is available to demonstrate its impact on the lives of people worldwide? Moreover, what are the factors that enhance or inhibit its effect where it matters – on the ground? Two decades ago, a group of researchers  based in twenty countries engaged in the most comprehensive attempt thus far to to answer these questions. The study leaders were Christof Heyns and Frans Viljoen from the the Centre for Human Rights, University of Pretoria, working with the UN Office of the High Commissioner for Human Rights. They have now again assembled a group of researchers based in the same twenty countries. Using the earlier study as a base-line, they are  asking where are we today, and how should we approach the future. Yet in spite of its geographical and temporal scope, this study will reveal only part of the picture, and it will date soon. What is needed is global, ongoing academic engagement with the treaty system. Researchers worldwide are encouraged to undertake independent research on the same topic in their home countries and to publish it in academic journals of their choice, making sure the treaty system enjoys the benefit of rigorous – and most importantly, locally based – academic engagement. See here

Filed under: Announcements and Events
 
Comments Off on Announcements: CfA Constitutional Court Review; UN Audiovisual Library of International Law; CfR – Global Study on the Impact of the UN Human Rights Treaty System

Call for Papers: European Journal of International Law – International Law and Democracy Revisited, The EJIL 30th Anniversary Symposium

Published on December 23, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

EJIL was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology, with predictions of liberal democracy to become regnant in the world and a New International Legal Order to replace the old First World-Second World-Third World distinctions.

Thirty years later the state of democracy, whether liberal or social or any other variant, seems to be far from sanguine.

Here is but a partial list of the challenges to democracy in the contemporary world:

  • The advent of so-called ‘illiberal democracies’
  • The crisis and breakdown of trust within established democracies
  • The reality or otherwise of states with ‘formal democracy’ often reduced to little more than elections, more or less free
  • The accountability and rule of law concerns, famously termed GAL concerns, which transnational governance regimes raise as indispensable features of democracy
  • The persistent ‘democracy deficit’ or ‘political deficit’ of the European Union and similar Organizations
  • The emergence of the global ‘data economy’ with mega platforms calling into question basic assumptions about territory and jurisdiction and calling into question the ability of democratic regimes to reign in such platforms increasingly questioned
  • The impact of both financial markets and international monetary bodies on the internal margin of manoeuvre and democratic choices of economic management
  • Democracy and global inequality: The relationship between counter-democratic ideologies, legal reforms and political processes at the domestic and global levels and social and economic processes such as the shrinking middle class and the lasting ramifications of the 2008 economic crisis.

Read the rest of this entry…

 

Favourite Readings 2018: Revisiting the Postwar Moment

Published on December 21, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we bring you 2018 favourite reads from Doreen Lustig

In 2018, the international legal world as we know it has faced deep and significant challenges, including the attack on democracies and the rise of authoritarianism, the preference of both the American and Chinese governments for bilateralism over multilateralism or the destabilizing of global economic institutions. How and what does one read at a time like this? Most of the books I survey here revisit the history of the postwar moment and its hopes for a future that is now our present. It may not be surprising that in this moment of bewilderment we return to history and early beginnings, searching for answers. We look for parallels in the past. We look more closely at the key architects of international law and how their ideas shaped (or not) the legal reality over time. We examine whose ideas took prominence and why. We search for the roads not taken. This is by no means a comprehensive list for such an inquiry, but I hope that reading these books may offer some important clues in working with these questions.

Let me open with a book on the transition from the interwar era of minority rights to the postwar era. James Loeffler’s Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale University Press, 2018) examines the tension between Jewish lawyers’ great hopes for a postwar human rights order, one that would take seriously the plight and persecution of minority groups, and their limited influence on its content and design. Read the rest of this entry…

 
Comments Off on Favourite Readings 2018: Revisiting the Postwar Moment