Two Weeks in Review, 3 October – 23 October

Jurisdiction

Nico Krisch, explores the extent to which the law of jurisdiction is implicated in structures of global governance. This post follows Roger O’Keefe’s reply to his article, ‘Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance‘. The two hold similar ideas on the characterization of the law as it stands, while they differ on the consequences that flow from it. 

Read the full post here.

The two contenders in this debate engage with each other’s images and their ensuing conclusions from the international law of jurisdiction on episode 17 of EJIL: The Podcast!. In this debate Nico Krisch posits that the traditional image is inappropriate, that in practice jurisdiction – at least when it relates to global markets – has become “unbound.” Moreover, Krisch argues 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.

Find EJIL: The Podcast! on Apple Podcasts, Spotify, Google Podcasts, or TuneIn. 

In her post, “HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers”,  Annick Pijnenburg examines the recent judgment in HF and others v France, a case concerning the repatriation of Islamic State children and their mothers from Syrian camps. Pijnenburg focuses on the Court’s approach to extraterritorial jurisdiction and compares it with the recent decisions of the United Nations (UN) Committee on the Rights of the Child on the same issue.

In their joint piece, “UNCITRAL and ISDS Reform: What to Expect When You’re Expecting”, Anthea Roberts and Taylor St John, explore the recent work of the UNCITRAL Working Group III. The two stress the importance of compromise as individual reforms enter the final stages. Roberts and St John conclude: 

‘At the end of another session, it is clear that the process is moving forward – the people and margins are back and reforms are gestating. But what should we expect when the Working Group is expecting? To us, it seems that finding ways to cope with a potentially overwhelming reforms-to-develop list and finding compromises will become increasingly important. How participants handle these challenges may shape whether a multilateral organism emerges and what form it takes. But it is too soon for prediction, there are still four long years of gestation left until the 2026 due date…’

Read the full post here.

Russia-Ukraine war

Maksym Vishchyk, examines the changes made by the Russian government to the school systems of its occupied zones in Ukraine. These changes include, but are not limited to, the replacement of the Ukrainian curricula, changing the language of instruction to Russian, introducing “propaganda lessons”, transferring teachers from Russia to the occupied territories, and using coercion to combat dissent. Vishchyk concludes that: 

‘The armed conflict in Ukraine exposes alarming signs of weaponising education – one of the few safe havens shielding children from the scourge of war. Russian policies resemble the decades of Soviet oppression implemented, inter alia, through Russifying education. Russian reported plans on staging the annexation of Ukrainian territories do not absolve it of responsibilities as an occupying power (GC IV, Art. 47). The latter dictate that while Russia can interfere with the education process to ensure its security in the occupied territory, such interference must not promote the territory’s annexation and disrupt the population’s loyalty to its State of nationality.’

Read the full post here.

In his post, “What a Demilitarized Zone Means for Liability and Responsibility for Transboundary Harm Emanating from Zaporizhzhia: Some Preliminary Thoughts”, Batuhan Betin discusses how the declaration of a demilitarized zone around the site of the Zaporizhzhia Nuclear Power Plant would alter principles governing international liability and responsibility for transboundary harm under IHL and the 1963 Vienna Convention on Civil Liability for Nuclear Damage.

Read the full post here.

In his post, “Remedial Peoplehood: Russia’s New Theory on Self-Determination in International Law and its Ramifications beyond Ukraine” Loqman Radpey examines the different claims brought by Russia with regard to the territories occupied by it and the possible implications these claims may have. 

Read the full post here.

Following the Security Council’s failure to adopt S/2022/155 of 25 February 2022 due to a Russian veto, the US Permanent Representative to the United Nations, Linda Thomas-Greenfield, announced her government’s intention to support efforts to reform the UN Security Council. This statement joins Liechtenstein’s veto initiative from May 2022. In his post, “The Echo of Quiet Voices. Liechtenstein’s Veto Initiative and the American Six Principles”, Raphael Schäfer examines the unprecedented momentum regarding veto power in the UNSC.

Read the full post here.

Armed Conflict

In her post, “Small Conflicts With Big Impact: The Tajik-Kyrgyz War No One Talks About”,  Julia Emtseva examines whether the Tajikistan-Kyrgyzstan border conflict has risen to an international armed conflict and whether parties to it could invoke the right of self-defense. Emtseva argues that labeling the Tajik-Kyrgyz conflict merely as “border clashes” or “border skirmish” has a problematic and diminishing impact. The author concludes that:

‘Language is a powerful tool in times of conflict. Language frames conflicts. The deliberate use of certain terms instead of others has the potential to neglect the scale of events as well as the political context and its historical repercussions. Many people have already died in the Tajik-Kyrgyz conflict and hundreds of houses and businesses were destroyed. The international community should get more involved in the discussions about the conflict. Preventing further escalations is key for the region and it appears to be difficult without the acknowledgment of the armed conflict and the urgent need to stop it.’

Read the full post here.

In their post, “Are Sabotage of Submarine Pipelines an ‘Armed Attack’ Triggering a Right to Self-Defense?”, Danae Azaria and Geir Ulfstein explore the legal questions arising from the recent explosions in the Baltic Sea, damaging the NordStream 1 and NordStream 2 pipelines. Following these events, the two analyze the arguments and challenges surrounding the sabotage of transboundary submarine pipelines. If it constitutes an ‘armed attack’ against a particular state, or states, it could trigger the right to self-defense under article 51 of the UN Charter and customary law. Azaria and Ulfstein argue that even assuming the sabotage on offshore pipelines and cables constitutes an ‘armed attack’ against a state, and any response in self-defense must meet the requirements of necessity and proportionality under jus ad bellum.

Read the full post here.

International Procedeengs

Santiago Vargas Niño examines concerns over Judicial accountability at Colombia’s Special Jurisdiction for Peace (“JEP”). JEP has drawn considerable attention for its attempt to balance calls for retribution with a restorative approach aimed at peacebuilding. It is argued that although the JEP made considerable progress lately, judges are also showing worrying signs of judicial unaccountability. These include violating the principle of legality, preventing parties and participants from challenging its decisions, and threatening judicial impartiality. In his concluding remarks, the author notes that: 

‘In its 2012 report, then Special Rapporteur Pablo de Greiff highlighted the role that transitional justice could play in the recognition of victims, the promotion of public trust, and the strengthening of the rule of law. None of that is possible if justice is not done and seen to be done. Thus, the importance of a competent and accountable judiciary during times of transition cannot be stressed enough. Faced with the concerning signs of disregard for the law presented in this article, the JEP would be well-advised to conduct its own Independent Expert Review before it is too late.’

Read the full post here. 

On 26 September 2022, an ICC defendant, Mr. Paul Gicheru, died in Kenya of an unknown cause. Following his death, Trial Chamber III’s terminated the proceedings against Mr. Gicheru. In their post, “Why the ICC’s termination of proceedings against deceased Kenyan defendant Paul Gicheru should not be the end of the matter”, Gõran Sluiter and Tomas Hamilton offer three practical recommendations for the Court to consider:

‘[…] the Chamber or the Presidency should order an independent ICC investigation into the cause of his death. In the event this points in the direction of foul play, the Deputy Prosecutor(s) should initiate a full and independent ICC investigation into the alleged murder of Mr Gicheru as a potential offence against the administration of justice pursuant to Article 70. The ICC Prosecutor should recuse himself from the Kenya Situation in a very broad manner, to permit the Deputy Prosecutor(s) to finally seek to deliver justice.’

Read the full post here. 

On 29 September 2022, Equatorial Guinea instituted proceedings against France before the International Court of Justice. In its application, Equatorial Guinea alleges that France is failing to comply with its asset recovery obligations under the 2003 United Nations Convention against Corruption (UNCAC). In her post, “Equatorial Guinea v. France (No. 2): A First Attempt at International Litigation on Stolen Asset Recovery”, Cecily Rose sheds light on the international asset recovery regime established by UNCAC, and how the rules of UNCAC could apply to the case at hand. Following her analysis Rose offers the establishment of a trust fund as a possibility that lies between the two extremes, of either returning funds to a highly corrupt state of origin or absorbing recovered funds into the treasury of the destination state. 

See her full analysis here.

In her recent article published in EJIL, Corina Heri discusses whether anthropogenic climate change can and should be understood as a human rights issue, particularly at the European Court of Human Rights (ECtHR). In a reply to her piece, Alexander Zahar voiced concerns about the over-extension of human rights law, invoking the perils of the ‘wish to commandeer an existing body of law to address a new problem type’. In this post, Heri counters three of Zahar’s main objections to her piece. Heri focuses on the role of courts and scholars in the interpretation of HRL, the autonomy of human rights law as a legal regime, and the fundamental principles of the European Convention on Human Rights (ECHR).

Read the full post here.

On 22 September 2022, the African Court of Human and Peoples’ issued its judgment on the matter of Western Sahara, concluding unanimously that the Respondent States had not violated the right to self-determination of Sahrawi people under Article 20 of the 1981 African Charter on Human and Peoples’ Rights, and all other related provisions raised by the Applicant. In her post, “Western Sahara Before the African Court of Human and Peoples’ Rights:  Is There a ‘Brother’s keeper’ Obligation for the Member States of the African Union?”, Hélène Tigroudja examines the substantive claim that the African Union Member States are the ‘brother’s keeper’ of the Sahrawi people and their right to self-determination under Article 20 of the African Charter and Article 1 common to the ICCPR and the ICESCR.

 Read the full analysis here.

Other Posts

In his post, “The Olympic Truce: Tradition or International Law?”,  Tomás Mariano Guisado Litterio explores the history of The Olympic Truce. In its historical context, the truce was a noble tradition of antiquity, by which Greek city-states were to observe a sacred truce during the Olympics. The author examines the modern form of this truce along with the difficulties that arise from understanding it as a legal norm. Mariano Guisado Litterio concludes that: ‘It seems increasingly likely that when we speak of the Olympic Truce today, we are speaking once again, two millennia later, of a nascent international legal norm, the specific content of which will be dictated by State practice over time.’

Read the full post here.

Sze Hong Lam explores how referenda were historically used to justify territorial conquest by Nations. The author focuses on this question mainly in the context of the Russian annexation of Ukrainian areas. Hong Lam concludes that:

‘It is important to see that the opportunistic use of self-determination did not start with Crimea but rather went further back to the very origin of the practice of self-determination, and the subsequent selective application by states throughout modern history. In the absence of any concrete legal definition of ‘the peoplehood’, an ‘ethos’ interpretation of people could well turn the popular consent into a tool legitimizing territorial conquest by irredentist nations and undermined the protection offered by other regimes of international law, such as the law of occupation. Having these historical lessons in mind, a UN-era understanding of ‘people’ as ‘demos’ within established boundaries must be reaffirmed.’

Read the full post here.

In her post, “Women, Life, Freedom: Have International Lawyers Run Out of Words?”, Zan Azadi calls on international legal scholars to use their voices and to mobilize their words regarding the government crackdown on protesters in Iran. Azadi asks international lawyers to narrate, expose and construct real images of the unfolding events through words. She argues this is: “the only way to empower such images with political strength and to ensure they are not evanescent but become remembered monuments.”

Read the full post here.

In their post, “The First Working Draft of the WHO’s ‘Pandemic Treaty’: Attempting to Cover Normative Gaps Indicated by the COVID-19 Pandemic?” Nasiya Daminova and Shisong Jiang provide a brief overview of the first working draft of the WHO pandemic treaty, indicating the key issues that appeared during the negotiation process. The two argue that the draft attempts to cover the vast majority of the normative gaps indicated by the COVID-19 outbreak. They go on to consider the simultaneous revision of the International Health Regulations, which still retain their force as a legal instrument of global pandemic governance.

Read the full post here.