Two Weeks in Review, 29 March – 11 April 2021

Myanmar

Marc Weller reflects on the norm of democracy in international law in light of the recent military coup in Myanmar. Weller discusses the appearance of the norm in human rights treaties and the potential responses of the UNSC and UNGA in instances where the norm is violated. 

Larry D. Johnson also addresses the recent Myanmar coup and examines recent practice in the UN in relation to who can be considered the legitimate representative of Myanmar in the organisation. The UN Human Rights Council’s March meeting allowed a representative speaking on behalf of the military regime to appear before it unchallenged. Johnson considers the implications of this episode and the potential actions that could be taken in future UNGA and ECOSOC meetings.

Diane Desierto discusses the activities of the UNSC in relation to the crisis in Myanmar and argues its emphasis on ASEAN’s role in brokering peace in Myanmar should not be made at the expense of its own mandate under ChVII of the UN Charter to make its own determinations of any threat to the peace, breach of the peace, or act of aggression and to make recommendations, or decide on such measures necessary to maintain or restore international peace and security. 

International Courts and Tribunals

Andreas Zimmermann gives an overview and some background to the recent non-appearance of Kenya in the oral proceedings of the ICJ’s Maritime Delimitation in the Indian Ocean Case (Somalia v. Kenya). Zimmermann discusses other cases of non-appearance and whether we might be facing a broader trend of non-appearance in proceedings before international tribunals. 

Abhimanyu George Jain examines an issue that was raised by the ICC’s Ntaganda Appeal Judgment relating to the extent to which war crimes referring to ‘attacks’ require a nexus to hostilities. The Judgment appears to have endorsed the Prosecutor’s argument that ‘attack’ should have a broader meaning and encompass all acts of violence in an armed conflict regardless of nexus to hostilities. Jain argues that in doing so, the Appeals Chamber seem to have extended the broad interpretation of ‘attack’ to war crimes generally.

Other issues

Dr Ellie Smith and Dr Melanie Klinkner discuss the issue of mass graves and how these should be protected and investigated in light of the common standards established in the Bournemouth Protocol on Mass Grave Protection and Investigation.

Dr. Eleonora Branca analyses the dynamic evolution of sovereign immunity before domestic courts given the recent decision by the Central District Court of Seoul ordering Japan to compensate 12 South Korean victims in respect of sexual slavery perpetrated by members of the Japanese Army during the occupation. The South Korean Court determined that “the doctrine of state immunity is not permanent nor static”. Branca discusses this issue in the context of the broader question of finding an appropriate balance between the individual right to an effective remedy and state immunity.

Finally, you can read all the recent Announcements and Events here.