Two Weeks in Review, 14 – 27 September 2020

EJIL News

The new issue of EJIL has been published. Joseph Weiler and Sarah Nouwen discuss in their Editorial the contents of Volume 31 (2020) No. 2 and they republish a piece by Gráinne de Búrca, Michaela Hailbronner and Marcela Prieto Rudolphy on Gender in Academic Publishing first published in the International Journal of Constitutional Law. You can find the Table of Contents of the new issue here.

And following up from the symposium in this issue of the EJIL on ‘Theorizing International Organizations Law’, Devika Hovell, Jan Klabbers and Guy Fiti Sinclair announce a follow-up symposium that aims to bring to light a greater diversity of voices and theoretical perspectives in international organizations law. Devika, Jan and Guy announce a call for ‘Reconsiderations, Hiddens Gems, and New Perspectives’.

Book Symposium: Comparative Reasoning in International Courts and Tribunals

We hosted a book symposium on Comparative Reasoning in International Courts and Tribunals by Daniel Peat, who won the 2020 ESIL Book Prize for this book.

Peat’s introductory post reflected on why he first wrote on this topic, the approach he adopted in the book, and the main findings. 

Richard Gardiner discusses issues raised in the book by Peat relating to the interpretation of treaties, specifically how the use of reasoning from domestic laws fits with the provisions of interpretation in the VCLT 1969 and whether the use of domestic law serves the purpose of clarifying the selection of the appropriate ordinary meaning of terms or acts as supplementary means of interpretation. 

Yvonne McDermott Rees focuses her discussion around Peat’s findings related to the ICTY and asks: first, whether the Tribunal’s ‘flexible approach’ to domestic law interpretations of principles is ‘too unique’ to draw general lessons on how domestic law informs the interpretation of international law; and second, whether the ICTY’s practice is in conformity with the principle of legality.

Antonios Tzanakopoulos queries whether some of the examples are actually ‘comparative reasoning’ or whether they are simply recourse to domestic law as an interpretative aid, before reflecting on ‘the real issue’ to him which is:  ‘whether we should all be frank and admit that we agree or disagree with interpretations precisely because of our political and ideological positions.’

Daniel Peat ends the symposium with a post responding to the points raised and thanking Richard, Yvonne and Antonios for their participation.

Luzius Wildhaber (1937-2020), President of the European Court of Human Rights

Robert Spano leads the tribute to Luzius Wildhaber, who died on 21 July 2020, by reflecting on the unique place in the history of the system of protection of human rights created by the ECHR that Wildhaber occupies. 

Antônio A. Cançado Trindade remembers the man and the extraordinary role in scholarship, academic engagement and the practice of international law that Wildhaber played.

Symposium: The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021

We also hosted a symposium on the Overseas Operations Bill, which received its second reading in the UK House of Commons on the 23rd of September.

Carla Ferstman and Thomas Obel Hansen opened the symposium by introducing the background to the Bill and highlighting the main controversies, from the perspective of both international law and human rights law, related to: the ‘presumption against prosecution’; the proposed derogation from the ECHR for overseas operations; the amendments to the UK Human Rights Act 1998; the so-called ‘civil litigation longstop’, which would limit civil litigation arising from the actions of the UK military when operating abroad; and that the legislation does not distinguish between war crimes, including grave breaches of the Geneva Conventions, serious violations of human rights from which no derogation is allowed, and lessor military infractions. 

Noelle Quenivet assesses whether the provisions of the Bill requiring the Prosecution to disregard the length of service, rank or personal resilience of a member of the armed forces contravenes international criminal law standards and argues that ‘exceptional demands and stresses’ do not, per se, excuse or justify a soldier’s unlawful act.

Daniel Holder considers the Northern Ireland angle to the Bill, because, while addressing ‘Overseas Operations’, the Bill as it stands would breach a core commitment of the Good Friday Agreement by rolling back domestic incorporation of the ECHR.

Elizabeth Stubbins Bates comments on the ‘triple lock’ on prosecutions featured in the Bill and argues that, although one of the justifications for the Bill is to reduce the extraterritorial ‘expansion’ of the ECHR, the reality is that the Bill does not reduce the extraterritorial scope of the ECHR and instead undermines the enforcement of international humanitarian law. 

Aurel Sari considers the provisions of the Bill relating to derogation from the ECHR by assessing the scope of the Secretary of State’s duty to derogate and whether this provision complies with Article 15 of the ECHR.

Other posts

Lorin-Johannes Wagner revisits the Nottebohm judgment in light of issues such as the monetarization of nationality, extraterritorial passportization that often features in nationalistic politics, and the instrumentalization of nationality to overcome the wrongs of a century old past. Wagner argues these developments are ‘out of sync’ with the ‘genuine link’ finding in Nottebohm and its reappearance in the 2019 ECJ case Tjebbes. 

Ole W Pedersen comments on the recent filing by six children from Portugal, aided by the Global Legal Action Network, of a complaint before the ECtHR alleging that 33 European countries violate their article 2, 8 and 14 rights. Pederson thinks there are three challenges the ‘climate change litigants’ will face, which include the margin of appreciation, the actual environmental standards developed under the ECHR and that the applicants have gone straight to the ECtHR without going through domestic courts.

Prabhash Ranjan examines the nationalist populism of India’s Narendra Modi’s government and its interaction with international law, showing that the government employs international law where this suits (i.e. the ICJ case against Pakistan) but ensures national law prevails where international law is perceived to be detrimental to the interests of ‘pure people’. 

Finally, all recent Announcements and Event notices can be found here.