The European Journal of International Law has taken a new step in increasing its offerings that contribute to the analysis of issues of international law. In addition to the Journal and this blog, EJIL:Talk!, which was established in 2008, the Journal also has a series of video interviews, EJIL:Live! We have now started EJIL: The Podcast! The aim of the podcast is to provide another forum for in-depth, expert but accessible discussion of international law issues in contemporary international and national affairs. We hope that readers of the journal and of the blog, who already have expertise in international law, will listen to the podcast. However, we also hope to attract an audience that extends beyond the international law specialist. The podcast is hosted by Sarah Nouwen (Cambridge), EJIL’s Co-Editor-in-Chief; Philippa Webb (KCL), Dapo Akande (Oxford); and Marko Milanovic (Nottingham). We also hope to have guests contribute to our discussions from time to time.

Please subscribe to the podcast on Apple Podcasts, Spotify, Google Podcasts, or TuneIn, It will shortly be available on several other platforms as well, and through aggregator apps on your phone or tablet. We would would appreciate listeners leaving a rating or review on the platform of their choice, as this will help promote the podcast.

 

EJIL:The Podcast! Episode 18 – “Be Careful What You Ask For”

In this episode Dapo Akande, Marko Milanovic and Philippa Webb are joined by Philippe Sands (University College London and 11KBW) and Margaretha Wewerinke-Singh (University of Amsterdam and University of the South Pacific). The focus is on the advisory function of international courts and tribunals. In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) requested an advisory opinion from the International Tribunal for the Law of the Sea on climate change impacts arising from ocean warming, sea level rise and ocean acidification. On 9 January 2023, Chile and Colombia signed a joint advisory opinion request to the Inter-American Court of Human Rights on the scope of state obligations for responding to the climate emergency. On 20 January 2023, the General Assembly adopted a resolution requesting an advisory opinion from the ICJ on “Israeli practices affecting the human rights of the Palestinian people on the Occupied Palestinian Territory, including East Jerusalem”. On 20 February 2023,  a core group of states, led by Vanuatu, formally tabled a final draft resolution for consideration during the current session of the UN General Assembly. The resolution requests the ICJ to provide an advisory opinion on the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change.

In this episode, the speakers look to the past and the present to assess the changing role of advisory proceedings. Philippe reflects on his experience  – his first appearance in the ICJ – on the Nuclear Weapons Advisory Opinion. The crucial strategy of formulating “the question” is discussed, with insights from Philippe on the Chagos advisory proceedings and from Margaretha on the meticulous process of settling on the wording of the ICJ climate change request. The speakers consider the challenges of an unwelcome outcome to an advisory request and how to turn jurisdictional competition into a positive factor.

Episode 17: What’s wrong with the international law on jurisdiction?

What conduct occurring where are states allowed to regulate? The international law on jurisdiction provides part of the answer. But international lawyers use different images when conceptualising the geographical reach of states’ jurisdiction to prescribe their laws. In this podcast, the two contenders in a debate in issue 33(2) of the European Journal of International Law engage with each other’s images and their ensuing conclusions as to the international law of jurisdiction. Nico Krisch posits that the traditional image is inappropriate, that in practice jurisdiction – at least when it relates to global markets – has come “unbound” and that this unbound jurisdiction has allowed economically powerful states to exercise global governance in a hierarchical fashion, triggering fresh demands for public accountability. Roger O’Keefe replies that this supposedly traditional image was never his understanding, argues that the current law of jurisdiction is fit for purpose and cautions against blaming this law for the perpetuation of the world’s economic inequalities.

Episode 16 – Disputing Archives

Archives are a marker of sovereignty and a resource for legal claim-making. When political forms are remade—when Empire gives away to a post-colonial state, or one state to many control of the archive is in question. International law offers tentative answers but, as with repatriation of cultural heritage (in our episode on Loot!), law jostles with rapidly-evolving professional and ethical norms of other kinds (particularly those of archivists) in making sense of what are sometimes called ‘displaced’ or ‘disputed’ archives. Actual patterns of repatriation may be shaped more by contingent political and diplomatic imperatives than any abstract principle. And, while these archives of states may be powerful, as repositories of intimate experience and foundations for rights claims, they also omit, or conceal, a great deal. Writing histories of international law and legal advocacy requires a negotiation with these limits, and a reflection on the political economy and ethics of archival access today.

Surabhi Ranganathan and Megan Donaldson are joined by James Lowry, Assistant Professor at the Graduate School of Library and Information Studies, Queens College, City University of New York (and editor of volumes on Displaced Archives and Disputed Archival Heritage); and Meredith Terretta, Professor in the Department of History at the University of Ottawa, currently researching a monograph titled Claimants, Advocates and Disrupters in Africa’s Internationally Supervised Territories (forthcoming).

Episode 15 – Now or Never, Or Maybe Later: The Use of Force to Recover an Occupied Territory

This episode accompanies the launching of a new rubric in the European Journal of International Law – Legal/Illegal. The first installment of Legal/Illegal, which appears in issue 32(4), focuses on the question whether the use of force by a state to recover a territory that has been occupied for many years may be considered a lawful act of self-defence.

In the Podcast, Michal Saliternik interviews the authors of this section: Tom Ruys and Felipe Rodriguez Silvestre on the illegal side, and Dapo Akande and Antonios Tzanakopoulos on the legal side. Beginning with the second Nagorno-Karabakh war, passing through the conflicts over the Falkland Islands, the Golan Heights, Northern Cyprus, and the Chagos Islands, and concluding with the Russian occupation of Ukrainian territories, they discuss the compatibility of forcible recovery of an occupied territory with the self-defence immediacy and necessity requirements as well as with the obligation to settle territorial disputes through peaceful means. They also discuss questions of justice and fairness, both towards the conflicting states and towards the inhabitants of the occupied territory.

Episode 14 – “From Russia With War”

In this episode Philippa Webb, Marko Milanovic and Dapo Akande are joined by Rebecca Barber (Asia Pacific Centre for the Responsibility to Protect) and Mike Becker (Trinity College Dublin) to examine various aspects of Russia’s war on Ukraine. The discussion begins with an evaluation of Russia’s legal justification for invading Ukraine, moving to an analysis of the responses to Russia’s aggression by the UN General Assembly and the Security Council. We then turn to the proceedings brought by Ukraine against Russia before the International Court of Justice pursuant to the Genocide Convention, the investigation initiated by the Prosecutor of the International Criminal Court, the commission of inquiry created by the Human Rights Council, and the pros and cons of an initiative to set up a Special Tribunal for the Crime of Aggression.

Episode 13: Loot!

This podcast, the second in the series, ‘Reckonings with Europe: Past and Present’ by Surabhi Ranganathan and Megan Donaldson, reflects on calls for return of cultural artefacts looted under European empire. Experts estimate that over 90% of African cultural heritage is outside Africa, and often in the major world museums. This figure reflects the staggering scale of looting under empire (and even the Anglo-Indian word ‘loot’ testifies to the imperial dimension of this form of pillage). While calls for the return of cultural artefacts are today gathering force, responses have been mixed. Curatorial embrace of these calls in some cases is outmatched by defences of the role of Western museums as ‘universal‘ repositories in many others. 

The hosts are joined by Evelien Campfens (Leiden University, former lawyer at the Dutch Restitutions Committee for Nazi looted art, and member of the Ethics Committee of the Dutch Museum Association); Chika Okeke-Agulu (Professor of African and African Diaspora Art at Princeton University); and Dan Hicks (Professor of Contemporary Archaeology at Oxford University, Curator of World Archaeology at the Pitt Rivers Museum in Oxford, and author of The Brutish Museums. The Benin Bronzes, Colonial Violence and Cultural Restitution) to reflect on the role of (international) law in response to these calls for return.

Episode 12 – “No Licence to Kill”

In this episode, Marko Milanovic, Philippa Webb and Dapo Akande discuss the legal issues that arise from targeted killings conducted by states outside their territory. We begin with a discussion of the recent blockbuster judgment of the European Court of Human Rights in the case concerning Alexander Litvinenko (Carter v. Russia, no. 20914/07, 21 September 2021). In that decision, a Chamber of the Court found Russia responsible for violating the right to life of Litvinenko, the former Russian spy who was poisoned with radioactive polonium in London in 2006. We talk about how the Court dealt with the attribution of the killing to Russia and then explore the extraterritorial application of human rights treaties obligations – a question on which many courts and treaty bodies have given inconsistent answers.

Episode 11: The Limelight on ESIL!

In this episode of the podcast, Joseph Weiler is joined by Helene Ruiz-Fabri, Photini Pazartzis and Marko Milanovic, to discuss the EJIL’s sister institution, the European Society of International Law (ESIL) – its foundation, mission, governance, and plans for the future, including the forthcoming annual conference in Stockholm.

Episode 10: Whatever Happened to International Law & Democracy?

Accompanying the Symposium on that question in EJIL issue 32(1), this podcast contains a duel between anti-anti-international law & democracy scholar Akbar Rasulov and anti-international law & democracy scholar Brad Roth. The debate continues on this blog: read Akbar Rasulov’s rejoinder here and Brad Roth’s subsequent response. Hosted by EJIL Editor in Chief Sarah Nouwen, they disagree on the curious fate of international law & democracy, on the politics of form versus the politics of substance and the role of the international lawyer. 

Episode 9: Reviewing Book Reviewing

Which author of a legal monograph has not had that frustrating feeling — Why is my book not getting reviewed (and his or her book is…!)? And yet, in one of the many exquisite paradoxes of academic life, all Book Review editors of legal journals will attest to the difficulty of getting colleagues to accept to do a book review. ‘I have to read that book carefully (i.e. going beyond the index and checking if I am cited and whether the engagement with my work is ok) and then write a couple of pages which count for nothing in the current lamentable state of quantitative academic appointments and promotions?’ Thank you but no thank you is the usual reply. We want our books reviewed but we don’t like reviewing books. Or as readers of legal book reviews — have you ever had the frustrating feeling of ‘I want to read about the book and this reviewer is just using it to inflict on us his own thoughts and ideas’. Or the opposite — if I want to read a description of the book I can go to the publisher’s website (or the author’s homepage…). Why is this review so bland and lacking in critical bite? 

These are just some of the issues that Cait Storr, Fuad Zarbiyev, EJIL book review editor Christian Tams and EJIL Editors in Chief Sarah Nouwen and Joseph Weiler discuss in this EJIL Live! episode of the podcast.

Episode 8: After the Fall

Megan Donaldson and Surabhi Ranganathan host a new podcast series Reckonings with Europe: Pasts and Present. In this episode they discuss statues. The toppling of the statue of the slave trader Edward Colston into Bristol Harbour was a cheerful spectacle within a bleak year. A moment of local politics and popular protest, it was also part of a global pattern of confrontation with and around monuments. Such moments have divided observers and concentrated questions. What does the toppling of statues signify? Where does this process of reckoning ‘end’? For some, these questions are a demand to stop the contestation at some (elusive) point. Our conversation asks instead where the reckoning might go. What are the paths to dismantlement of the structures of exploitation, and imperial glorification which statues like Colston’s (a 19th century commemoration of a 17th century life) signify? 

They are joined by Professor Matthew Smith (director of UCL’s Centre for the Study of the Legacies of British Slavery), Dr Mezna Qato (Newnham College, Cambridge; curator of a project on Archives of the Disappeared), and Dr Rahul Rao (SOAS, currently writing a book on the politics of controversial statues).

Episode 7: Walking Back Human Rights in Europe?

In this episode of the podcast, Sarah Nouwen is in conversation with Laurence Helfer (Harry R. Chadwick, Sr. Professor of Law, Duke Law School) and Erik Voeten (Peter F. Krogh Professor of Geopolitics and Justice in World Affairs, Georgetown University) about their EJIL article “Walking Back Human Rights in Europe?” In their article, Professors Helfer and Voeten consider whether the European Court of Human Rights is shifting in a regressive direction. They do so by analysing all separate and minority opinions of the Court’s Grand Chamber between 1998 and 2018, focussing on opinions asserting that the Grand Chamber has tacitly overturned prior rulings or settled doctrine in a way that favours the respondent state.

The conversation begins with a discussion of what it mean to “walk back human rights” and how one assesses whether human rights are being walked back? The discussion also extends to the art of co-authoring academic work, particularly one such as this, written by people from different disciplines. How does one keep a single voice in a co-authored text?

Episode 6: Trumping International Law?

This episode examines the effects of the four years of the Trump Administration on international law. The team are joined by Neha Jain, Professor of Public International Law at the European University Institute and Chimene Keitner, who is Alfred and Hanna Fromm Professor of International Law at the University of California Hastings to explore the impact of the Trump Administration on the future of multilateralism. To what extent did the Trump Administrations policies affect or change the foundations of the international legal system or help to reshape certain structural features across that system. We discuss the effect of Trump Administration policies on a range of international institutions, including the World Trade Organization and the International Criminal Court. Did those policies simply expose weaknesses in those institutions? How might those weaknesses be remedied, and how will the relationship between those institutions and the US develop over the course of the new Biden administration?

Episode 5: Breaking Bad – in a Specific and Limited Way

In this episode of the podcast, the team analyse the Internal Market Bill going through the UK Parliament. The Bill is a remarkable piece of proposed legislation in that UK ministers, including the governments most senior legal advisers, admit that the aim of particular parts is to breach international law – albeit “in a specific and limited way”! More specifically, the legislation, if adopted, will give UK ministers powers to adopt regulations which violate the Withdrawal Agreement entered into between the European Union and the UK less than a year ago. The podcast team discusses the reasons the UK government has put this Bill forward at this point in time, noting how rare it is for a state not only to admit to breaking international law before actually doing so, but to actually give its executive organs powers that are explicitly aimed at doing so.  The discussion turns to whether there are any international legal arguments, particularly under the law of treaties, that could plausibly justify the actions proposed by the UK government. The team also consider whether the actions taken by the UK are consistent with the rule of law: can this concept be bifurcated between the domestic and the international spheres? Finally, what should the role of governmental legal advisors should be in such situations.

Episode 4: Court Between a Rock and a Hard Place

For quite some time, the International Criminal Court (ICC) was criticised for focusing exclusively on Africa, as opposed to investigating situations in which powerful western states are heavily involved or have strong interests. In the first part of episode 4, Kamari Clarke, Professor of Anthropology at the University of California Los Angeles and author of the recent book Affective Justice: The International Criminal Court and the Pan-Africanist Pushback, joins us to discuss whether the ICC is able to deal with structural injustice. We discuss this against the background of the question whether black lives matter before the ICC. More recently, and possibly in response to the criticism that the ICC was too focused on Africa, the Prosecutor has made moves towards investigating situations potentially involving a number of bigger powers, including the US, the UK, Israel and Russia. The second part of the podcast discusses some of the political and legal challenges that have arisen when the Court goes after nationals of states not party to its Statute. In particular, the group discusses the legality, under general international law and the ICC Statute, of recent US sanctions against the Court in response to the investigation into the situation in Afghanistan. The episode concludes with a discussion of whether the ICC is able to determine the territorial boundaries of Palestine.

Episode 3: Hacked Off!

In episode 3, which focuses on the application of international law to cyber operations by states and non-state actors, Sarah, Nouwen, Marko Milanovic and Dapo Akande are joined by Harriet Moynihan (Chatham House), and Tilman Rodenhäuser (International Committee of the Red Cross). The particular context for the discussion is the recent rise in cyberattacks against the health care sector, especially in the context of the fight against COVID-19. However, the discussion ranges widely across a range of international law issues that might arise in the context of cyber operations. We consider whether international law imposes obligations on states to refrain from such attacks having effect in other states. When would such attacks violate the prohibition of the use of force? Do they constitute a breach of the principle of non-intervention in internal affairs? Is there a principle of sovereignty that can be breached by such operations? We also examine the applicable principles of international humanitarian law when cyber operations occur in the context of, or themselves trigger an armed conflict. Finally, we discuss the obligations, under international human rights law and other bodies of law, to take positive action (to exercise due diligence) to protect against harm occurring from attacks by non-state actors.

Episode 2: WHO Let the Bats Out

In episode 2, Sarah Nouwen, Marko Milanovic, Philippa Webb and Dapo Akande are joined by Gian Luca Burci, former Legal Counsel of the World Health Organization (WHO), to discuss what international health law provides in relation to preparation for and responses to pandemics. We consider the role of the WHO and its response to the COVID-19 crisis. We also discuss the status of the International Health Regulations adopted by the WHO as well as the obligations it imposes in situation such as the COVID-19 pandemic. What obligations, if any, did China have under these Regulations and did it act in breach of those obligations? We then turn to the various calls or attempts to hold states and organizations (China, the US, the WHO) accountable in international and  domestic courts. The final segment, which looks at international law issues being crowded out by the coronavirus, discusses a recent English case that raises a difficult tension between the obligation of states to accord diplomatic immunity and to protect human rights.

Episode 1: Contagion

In the first episode of the podcast, we discuss the compatibility with international human rights law of the measures taken by states in the fight against the corona virus. In particular we address the question of whether, in tackling the virus, states have a duty to cooperate in order to secure the right to health. We also discuss whether states need to derogate from rights provided for in human rights treaties in order to take measures they consider necessary to protect health, or do the limitations inherent in those rights mean that they are sufficiently flexible to permit these measures? As we see states take a number of measures, including in some cases, legislation, to  combat misinformation relating to the virus, we consider whether human rights law imposes limits on how far states can go.

Although the coronavirus is the overwhelmingly dominant issue of the day, other international law issues have not completely disappeared. On the blog, we have tried to balance analysis of international legal issues relating to the virus with coverage of other issues. Likewise, we  end this first episode of the podcast with one of the international law issues of the day not receiving attention because of the virus – the indictment by the United States of Venezuelan President Nicolas Maduro.

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