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The Oral Hearings in ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’

Published on September 11, 2018        Author: 
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The oral hearings in the advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 took place at the ICJ last week. Readers will recall the two questions posed by the General Assembly in its request for an Advisory Opinion (Resolution 71/292) and the procedural and propriety issues raised by this case, as discussed by Marko, Dapo and Antonios – here, here and here. A host of States – and the African Union – participated in the proceedings and their voluminous written and oral statements/comments will surely keep interested scholars busy for a long time to come. In this post, I will try to restrict myself to the task of offering a few initial comments on the self-determination arguments made in relation to the first question (essentially, was the decolonization of Mauritius lawfully completed when it acceded to independence in 1968, following the detachment of the Chagos Archipelago?). For this purpose, I will focus on the claims made by the UK and Mauritius for the sake of brevity, and not because I agree with the UK’s contention that Mauritius is the ‘de facto claimant’ in this case (Transcript p. 36).

When approaching the claims and counter-claims concerning the Chagos Archipelago – or the British Indian Ocean Territory (‘BIOT’) – it is worth bearing in mind at least two important considerations. First, the UK is clearly on the wrong side of history as far as both the creation and maintenance of the BIOT are concerned. Secondly, the closest comparable case in the ICJ’s jurisprudence, the Western Sahara Advisory Opinion, is different in one key respect. The Western Sahara Opinion was sought while the General Assembly was actively engaged in a fraught and flawed attempt at decolonization and it was delivered when the crisis was still unfolding. In contrast, in the present proceedings, the ICJ has been invited to answer questions which not only require it to establish the legal significance of events which occurred largely between 1965-1968 but also to assess their present consequences. Undoubtedly, this is a difficult task and we shall have to wait and see whether the Court responds positively to the Request or whether it adopts a more non-committal approach, as it did in its Kosovo Advisory Opinion.

Self-determination and Customary International Law

The UK argued that the right of self-determination had not crystallized as a norm of customary international law (CIL) by either 1965 or 1968 (e.g. Transcript, p. 48). Specifically, it denied that the Colonial Declaration (GAR 1514 (XV)(1960)) generated any binding legal obligations as far as Mauritius’ decolonization was concerned. The 1960 Declaration proclaimed the core right – that ‘all peoples have the right to self-determination’ (para. 2) – while stating that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the [UN] Charter’ (para. 6). The UK claimed that the right of self-determination only acquired CIL status with the adoption of the Declaration on Friendly Relations (GAR 2625 (XXV)(1970). It relied on voting records, and the statements made, by State representatives, in the context of the development and adoption of these, and other, resolutions (and contemporaneous academic opinions) in support of its preferred interpretation. Read the rest of this entry…

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The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
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This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

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Announcements: Nottingham International Law and Security Centre Interdisciplinary Conference; UNIJURIS Seminar on Jurisdictional Reasonableness

Published on September 9, 2018        Author: 
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1. Nottingham International Law and Security Centre Interdisciplinary Conference. The Nottingham International Law and Security Centre (NILSC) welcomes submissions for its 2018 conference, which will take place at the School of Law, University of Nottingham on 9 November 2018. The theme of the conference is the ’70th Anniversary of the Genocide Convention’. This theme can be conceived broadly. Submissions from multiple backgrounds and disciplines are encouraged. Proposals taking normative, conceptual, doctrinal, and historical perspectives are particularly welcome. The conference will also include a keynote debate between Professors Olympia Bekou, Marko Milanovic and David Fraser on the concept of genocide’s value, chaired by Dr Cosmin Cercel. Abstracts of strictly no more than 500 words and a biography of no more than 100 words should be sent to nilsc {at} nottingham.ac(.)uk The deadline for submission of abstracts is midnight on Saturday 15 September 2018. For further information please visit the NILSC website.

2. UNIJURIS Seminar on Jurisdictional  Reasonableness. The  project  on  ‘Unilateral  Jurisdiction  and  Global  Values’  (UNIJURIS),  funded  by  the  European Research  Council  and  the  Dutch  Organization  for  Scientific  Research  (PI:  Prof.  Cedric  Ryngaert), organizes  a  half-day  seminar  on  jurisdictional  reasonableness  on  30  October  2018,  at  Utrecht University.  The  aim  of  the  seminar  is  to  have  speakers  with  diverse  backgrounds  reflect  on  the  value  and  role  of reasonableness  in  preventing  and  settling  jurisdictional  disputes  in  various  fields.  Is  reasonableness  used in  fact,  and  if  so,  is  it  properly  applied?  Is  reasonableness  a  legal  concept,  and  if  so,  what  is  its  source (public  international  law,  European  law,  domestic  law)?  What  is  its  relationship  with  comity?  Does  it go  beyond  the  remit  of  courts  and  administrative  agencies  to  engage  in  the  sort  of  (sovereign)  interestbalancing  which  reasonableness  prescribes? Can  reasonableness  be  applied  as  a  general  principle,  or should  it  be  operationalized  by  specific  norms? The  seminar  consists  of  three  thematic  panels: (1) transnational  civil  litigation; (2)  criminal  law; (3)  regulatory  law. To register, please  send  an  email  to  secretariaat.ier {at} uu(.)nl
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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

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Insights from the Bifurcation Order in the Ukraine vs. Russia Arbitration under Annex VII of UNCLOS

Published on September 6, 2018        Author:  and
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By Procedural Order of 20 August 2018 (“Bifurcation Order”), the arbitral tribunal established under Part XV and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)” ordered a bifurcation of the proceedings so that Russia’s preliminary objections concerning the arbitral tribunal’s jurisdiction ratione materiae will be examined in a preliminary phase  prior to the merits (see also this statement by Ukraine’s Ministry of Foreign Affairs). This development brought with it some much needed transparency in the arbitration instituted by Ukraine against Russia on 16 September 2016, since the written submissions of both parties remain confidential. What appears from the public statements of Ukraine’s government (here and here), is that Ukraine is claiming that Russia violated Ukraine’s rights under UNCLOS with respect to Russian activities in the Black Sea, the Sea of Azov and Kerch Strait, in particular, involving issues such as the seizure and exploitation of oil fields on Ukraine’s continental shelf, usurpation of fisheries jurisdiction off the coast of Crimea, issues of navigation through Kerch Strait, the construction of Kerch Bridge and related structures, and the conduct of studies of archeological and historical sites in the Black Sea.

The Bifurcation Order discusses (and cites from) a variety of the parties’ arguments concerning jurisdiction ratione materiae, several of which inevitably disclose some of the parties’ substantive positions. With respect to Russia’s request that the arbitral tribunal “adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine”, it should be recalled that, under Article 288(1) UNCLOS, the arbitral tribunal’s jurisdiction is limited to “any dispute concerning the interpretation or application of [UNCLOS]”. As Russia’s request to decline jurisdiction is not confined to specific issues or narrow questions of fact or law, it appears that Russia is challenging the arbitral tribunal’s jurisdiction in its entirety. The Bifurcation Order lists six separate preliminary objections. Read the rest of this entry…

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Failure to Protect Civilians in the Context of UN Peace Operations: A Question of Accountability?

Published on September 5, 2018        Author: 
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On 31 July 2018, thirty-two States asked the United Nations (UN) Secretary-General António Guterres to go a step further in addressing the failures of UN peace operations to protect civilians. In particular, they stressed the importance of holding those accountable who have failed to protect civilians in line with their mission’s mandate (see Letter to the UN Secretary-General). In 2015, the same States already adopted the Kigali Principles, a set of eighteen pledges for the effective implementation of protection of civilians mandates (PoC Mandates) in UN peace operations.

Since the failures of UN peacekeeping in Rwanda and Srebrenica in the 1990s, the UN Security Council has provided UN peace forces with more robust mandates to protect civilians. These PoC Mandates have been carried out with varying degrees of success. To illustrate: in 2013, the UN Security Council authorised the UN Mission in the Republic of South Sudan (UNMISS) to protect civilians by not only deterring violence against civilians (e.g. through proactive deployment and patrols), but also by protecting civilians under imminent threat of physical violence (UNSC Res. 1996 (2011), para. 3(b)). Nevertheless, between 8 and 11 July 2016 hundreds of civilians were killed and raped in Juba, the capital of South Sudan. Allegations were made that UNMISS did not respond effectively to protect civilians from the intense fighting that contributed to the collapse of the fragile ceasefire that existed at that time. An Independent Special Investigation established by the UN Secretary-General inter alia found that “a lack of leadership on the part of key senior Mission personnel culminated in a chaotic and ineffective response to the violence” (UN Doc. S/2016/924 (2016), Annex, para. 7). This also echoes the conclusion of the 2014 Evaluation of the implementation and results of PoC mandates in UN peacekeeping operations by the internal oversight body of the UN (OIOS) (UN Doc. A/68/787 (2014), para. 79). Other recent examples whereby UN peace forces failed to intervene to protect civilians took place in Darfur, Sudan (2004) and in North Kivu, the Democratic Repbublic of the Congo (DRC) (2008). Read the rest of this entry…

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‘Drug Addicts’ and the ECHR

Published on September 3, 2018        Author: 
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Paul Hunt has said that drug control and human rights have operated in ‘parallel universes’. For the most part this is true and the vast majority of human rights advocacy and scholarship in this area goes to attempting to bridge that divide and hopefully mitigate some of the damage brought about by the ‘war on drugs’. Recently, however, I have become more and more interested in those areas where human rights and drugs have already converged, sometimes explicitly. This leads to the ECHR and to questions about whether such convergence is a good thing.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Article 5(1)(e) of the ECHR is unique in international human rights law. The formulation is absent from the American Convention on Human Rights, the African Charter on Human and People’s Rights and the Covenant on Civil and Political Rights. A first question, then, is how this fairly odd wording arrived in the ECHR? It did not feature in the UDHR or in the draft Covenant on Human Rights drafted in 1949 and from which article 5 began. The answer, it appears, is Sweden, though there is an interesting gap in the travaux in this regard.

Reference to alcoholics, drug addicts and vagrants was absent from the initial drafts of the article. At the first expert committee meeting, however, Sweden proposed the wording that ‘This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism…’ This attention to alcohol makes sense when one considers the history and influence of the temperance movement in Sweden. It was ultimately withdrawn, however, on the condition it be put on record that the text ‘covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness …’. It is further recorded that ‘the Committee had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order’. Read the rest of this entry…

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Announcements: CfS UCL Journal of Law and Jurisprudence; CfP Military Law and the Law of War Review; CfP Journal of Law and Rural Development; 2019 Harvard IGLP Scholars Workshop 

Published on September 2, 2018        Author: 
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1. UCL Journal of Law and Jurisprudence Call for Submissions. The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2019. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 15 October 2018. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website

2. The Military Law and the Law of War Review Call for Papers. The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its coming issue, the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). The deadline for submission is 31 October 2018. Submissions should be sent by e-mail to brussels {at} ismllw(.)org. Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address. Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue will appear in the course of 2019.

3. Journal of Law and Rural Development Call for Papers. The Journal of Law and Rural Development is published annually by IFAD, the International Fund for Agricultural Development. The Journal is a forum where the link between law and rural development can be explored and ideas can be discussed without any political, ideological or bureaucratic limitations.  Links to the first and second issues of the Journal, focusing on Land Governance and Renewable Energy and Rural Development, can be found here.  The Journal is now soliciting papers for the third issue, which will be published in May 2019, on legal topics related to youth, migration and rural development.  The deadline for submission of article abstracts is 30 September 2018 and final drafts should be submitted by 15 December 2018.  For more information please contact Charles Forrest at c.forrest {at} ifad(.)org.
 
4. 2019 Harvard IGLP Scholars Workshop. Harvard Law School’s Institute for Global Law and Policy (IGLP) is pleased to announce the 2019 Harvard IGLP Scholars Workshop, organized in collaboration with and hosted by the Thailand Institute of Justice. Held in Bangkok, Thailand from 6 – 10 January 2019, the Workshop is an intensive, regionally-focused residential program for doctoral and post-doctoral scholars and junior faculty of law and policy from around the world. The 2019 IGLP Scholars Workshop will focus on the important legal and political choices embedded in policy debate on issues facing Asia and the world, while offering unparalleled opportunities to strengthen participants’ writing and research. The IGLP Workshop offers a unique scholarly format. The week features a stimulating series of plenaries, lectures, and networking opportunities, alongside innovative mini-courses on contemporary issues of law and policy. We encourage applications from young scholars across Asia and worldwide who would benefit from intensive collaboration with colleagues from across Asia and IGLP’s junior and senior faculty. Interested scholars for the IGLP Scholars Workshop are encouraged to apply via the IGLP website. Applications are due 21 September 2018. During the 2018 IGLP Scholars Workshop, The Thailand Institute of Justice & the IGLP will once again convene a concurrent workshop for selected emerging policy professionals, which offers a unique opportunity for policy practitioners from different sectors to engage with their global peers in dialogue facilitated by the faculty from the IGLP and TIJ network. For more information see here

Read the rest of this entry…

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The Hartford Guidelines on Speech Crimes in International Criminal Law

Published on August 31, 2018        Author: 
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Armed conflicts and mass atrocities are usually preceded by a propaganda campaign in which politicians and public figures foment ethnic, national, racial or religious hatred, and incite their followers to acts of violence. Since the ancient Greeks, criminal law has held the person inciting the crime as responsible as the material perpetrator and yet historically, the international legal mechanisms available to interdict and punish inciters have been meager.

International tribunals face unique challenges when adjudicating international speech crimes such as direct and public incitement to commit genocide and instigating crimes against humanity. Courts must balance freedom of expression, a right protected by international conventions, with the need to regulate potentially harmful speech. Offences such as instigating persecution and incitement to genocide remain an unsettled area of international law where the evidence required to satisfy the elements is unclear. Recently at the ICC, prosecution cases relying heavily on speech acts to demonstrate a contribution to an alleged criminal plan have collapsed at the pre-trial or trial stage (e.g., Mbarushimana and Ruto/Sang). Even when the prosecution secures convictions, the legal reasoning in the judgments is often roundly criticized by legal scholars (e.g., Nahimana and Bikindi at the ICTR).

With inchoate crimes such as incitement to genocide, the primary task of the court is to determine the intentionality of the speaker, a task that is made more difficult by the fact that propagandists often use coded or euphemistic speech which courts may perceive as symbolic or expressive, rather than as directly advocating a crime. In the case of completed crimes, international courts must ascertain whether there is a causal nexus between the expression and any subsequent offence in complex, overdetermined situations where multiple forces are at work and intervening factors may exist. Read the rest of this entry…

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Is the International Law Commission Elevating Subsequent Agreements and Subsequent Practice?

Published on August 30, 2018        Author: 
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At its most recent (70th) session, the International Law Commission adopted two important sets of “restatements” on two important sources of international law on second reading, namely the Draft Conclusions on the Identification of Customary International Law and the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (see the ILC’s 2018 Report (UN Doc A/73/10) here). This post concerns the second of these restatements, subsequent agreements and subsequent practice (see Chapter IV of the Report).  In particular, this post expresses a concern about an apparent, almost surreptitious, attempt by the Commission to elevate subsequent agreements and subsequent practice as tools of interpretation to the same level as the more objective tools outlined in article 31(1) of the Vienna Convention of the Law of Treaties. The concern may seem like a storm in a cup – and I hope that is the case.  However,  there is a real possibility – a possibility which could risk the stability of treaties – that the ordinary meaning of the words of a treaty, in their context and in light of the object and purpose of the treaty could give way to ever-changing moods of States expressed through subsequent agreements and subsequent practice. If states don’t like the terms of the treaties they have adopted, they should amend it through the means provided for in the treaty or in the customary rules on amendments of treaties. Amendment through interpretation, a real likelihood if subsequent agreements and subsequent practice were elevated to an independent status of equal value – perhaps some day even greater – to ordinary meaning, in context and in light of the object and purpose, would be a dangerous course.  It is hoped that this implicit suggestion in the work of the Commission is not taken up the practice of courts in the application of article 31.

I should begin by two caveats.  First, this post, like the draft conclusions themselves, concerns only subsequent agreements and subsequent practice in relation to treaty interpretation.  Thus, what is said here does not affect the role that subsequent agreements or subsequent practice might have, say for modification of treaties in general. Second, there is, admittedly, nothing in the draft conclusions themselves that can be interpreted as the elevation of subsequent agreements and subsequent practice.  The (attempted) elevation comes in the commentaries to a number of provisions in the set of draft conclusions.  I should note, in connection with the last-mentioned caveat, that the commentaries themselves seem to have been elevated to a higher position than before – not quite on par with the draft conclusions but certainly approaching that level.  While in the past, it has been understood that the draft texts adopted by the Commission were to be read with commentaries, during the 70thsession, the Commission inserted language as the first paragraph in the general commentary of both second reading topics to emphasise this point, which had not been emphasised in this manner before. Read the rest of this entry…

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