Two Weeks in Review, 22 November – 5 December 2021

New Issue of EJIL (Vol. 32(2021) No. 3)

The latest issue of the European Journal of International Law  (Vol. 32 (2021) No. 3) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Readers can access those articles that are freely available without subscription at EJIL’s own website. The free access articles in this issue are Dissenting Opinions and Rights Protection in the European Court: A Reply to Laurence Helfer and Erik Voeten by Alec Stone Sweet, Wayne Sandholtz, and Mads Andenas, and the Rejoinder by Laurence Helfer and Erik Voeten. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

• Read the table of contents
• Read the Editorial by EJIL Associate Editor Orfeas Chasapis Tassinis
• Read the Editorial by EJIL Review Editor Christian Tams

Symposium on IHL Compliance

We finished the joint symposium with Articles of War on the Oxford Forum for International Humanitarian Law Compliance. The full list of posts in the symposium are as follows:

• Elizabeth Stubbins Bates opens the symposium with an introductory post articulating international humanitarian law’s ‘enduring’ problem with compliance.
• Read the post by Dale Stephens and Eve Massingham on Articles of War: ‘Military Partners and the Obligation to “Ensure Respect” for IHL‘ which touches on the importance of this obligation for coalitions.
• Andrew Bell asks whether state and nonstate armed forces can socialise combatants to “norms of restraint” as part of their military training to further ensure their respect for and compliance with IHL. 
• Craig Jones’s post on Articles of War considers the role of military legal advisers and reflects on the ‘simultaneous power and potential impotence of legal advice’ in the context of military operations.
• Lt Col Tom Oakley considers the delivery of law of armed conflict education and training, especially in relation to distinguishing between the lata and the ferenda, to forces prior to their deployment. 
• Yvette Zegenhagen and Michael Meyer on Articles of War offer an in-depth survey of the ICRC-Swiss initiative on Strengthening Compliance with IHL. 
• Elizabeth Stubbins Bates closes the symposium with some thoughts on why ‘minilateral’ initiatives (led by one or several willing states, in dialogue with civil society) could be more successful that multilateral compliance initiatives in IHL.

The ICC

Alexandre Skander Galand writes about the International Criminal Court’s Appeals Judgment on Abd-Al-Rahman Jurisdictional Challenge (“Ali Kushayb”) and whether the principle of legality prevents the court from applying its statutory definitions of crimes against humanity and war crimes over Abd-Al-Rahman, a national of Sudan, for conduct that occurred in Darfur, Sudan in 2003-2004. Read more in Galand’s post.

Talita de Souza Dias examines the merits and shortcomings of the Abd-Al-Rahman Jurisdictional Challenge Appeals Judgment, and argues that in order to ‘ensure full compliance with the principle of legality’ the ICC should avoid characterising the crimes and modes of liability as crimes under the Rome Statute and instead apply pre-existing international law, including customary international law and other applicable treaties.

Covid-19

Sofia Galani and Kevin Judkins look at the lack of legal protection for New Zealand seafarers as a result of the COVID-19 Public Health Response (Maritime Border) Order (No 2) 2020 which has resulted in many seafarers being stranded abroad or unable to take up employment opportunities for fear of being stranded once the contract ends. They call for an urgent change in the law.

Diane Desierto, in light of the WTO 12th Ministerial Conference being indefinitely postponed due to the Omicron variant where the TRIPS waiver proposed by India and South Africa was due to be discussed, argues that ‘international economic decision-making cannot afford to ignore its distributional consequences and externalized impacts on the lived realities of human rights deprivations in our societies and populations’ and new COVID-19 variants continue to highlight the need to rethink international economic law’s ‘largely private law-driven raison d’etre’. Read more in Desierto’s post.

Pedro A. Villarreal discusses South Africa’s ‘punishment’ for fulfilling its obligations under the 2005 International Health Regulations and notes the lack of rewarding structures under the regulations. Villarreal suggests that the ‘Pandemic Treaty’ should have a rewards system that incentivizes states to share epidemiological data during pandemics.

Other posts

Anthea Roberts and Taylor St John review the recent developments in the UNCITRAL Working Group III on ISDS reform, including the draft Code of Conduct and the points of disagreements between states. They also note the development of hybrid meetings and new coordination, especially among African states.

Lorenzo Gradoni writes about the ILC elections and the issue of gender disparity. Gradoni ‘brings together documentary and statistical evidence that should deepen the sense of injustice in the face of such dismal a record’ and looks at whether by-elections could help increase the pace of change.

Harro van Asselt examines the reasons why so few references are made to fossil fuels in climate change treaties (for example the 2015 Paris Agreement does not mention fossil fuels once) and analyses the politics behind the COP 26 Decision‘s reference to fossil fuels.

Lucas Carlos Lima and Aziz Tuffi Saliba considers the recent jurisdictional immunities decision by the Brazilian Supreme Court which set aside the jurisdictional immunity of Germany, instead giving ‘priority to the constitutional rule of the “prevalence of human rights”’. Read more about this decision in their post.

Alberto Rueda Carazo looks at the current Agreement on the Rescue of Astronauts and argues it is now obsolete in the era of space tourism and that a reinterpretation of the main treaties is required. Read the post here.

All recent Events and Announcements can be found here.