Two Weeks in Review, 6 – 19 July 2020

Kai Ambos and Matthias Lippold, on the anniversary of the Nuclear Weapons Advisory Opinion, dissect the ICJ’s conclusion that “(t)here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. They examine how this obligation relates to states not parties to the NPT and reflect on whether the NPT and customary international law actually require states to work harder towards nuclear disarmament.

Joseph Weiler and Daniel Sarmiento defend the proposal they made, in the wake of the German Constitutional Court Weiss decision, for the creation of a Mixed Chamber at the EU’s Court of Justice. Their proposal is that the Mixed Chamber, composed of members of the EU Court of Justice and judges of member state constitutional courts , would have jurisdiction to solve conflicts of competence between the EU and its member states. 

Manuel Casas analyses the international legality of states, such as the UK, granting migratory rights to Hong Kongers in light of the tense situation in Hong Kong, most recently due to the Chinese government’s decision to impose a new national security law.

Timothy McKenzie discusses the recent US Supreme Court decision which held the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not prohibit non-signatories from enforcing international arbitration agreements under the doctrine of equitable estoppel, arguing the decision will stoke further debate about the principle of consent and choice-of-law. 

Marko Milanovic comments on the ECtHR judgment in Makuchyan and Minasyan v. Azerbaijan and Hungary, which raised questions related to the ECHR’s extraterritorial application – in particular to assassinations by state agents of individuals abroad -, the attribution of the conduct of state organs not committed in official capacity and provided detailed analysis of Article 11 of ILC Articles on State Responsibility.

Douglas Guilfoyle, in the wake of reports of a communication to the ICC alleging that the treatment of Uighurs by Chinese authorities constitute crimes within the Court’s jurisdiction, asks whether the ICC is destined to pick fights with non-state parties. This communication is said to found its jurisdictional basis in China’s forced deportations of Uighurs to Cambodia and Tajikistan, which are parties to the ICC statute, relying to the ICC finding in relation to Bangladesh/Myanmar that the court may take jurisdiction over certain cross-border offences where one of the states involved is a party to the Statute.

Diane Desierto comments on the recent UN Sustainable Development Goals Report 2020, noting the deepening inequality in the Global South. Desierto argues that now is the time to rethink the current limitations of the UN human rights regime, including those limitations related to jurisdiction, absence of enforcement, and limited scope of reparations available for human rights victims. 

Stéphanie de Moerloose and C. Ignacio de Casas discuss the recent Inter-American Court of Human Rights judgment which found Argentina responsible for the violation of the rights of 132 indigenous communities of the Salta province. They argue this is a landmark judgment that is innovative in how it approaches rights related to consultation, grounding these also in Article 23 (the right “to take part in the conduct of public affairs”) of the ACHR.

COVID related posts

Haris Huremagić and Fritz Kainz argue that there might be a way to hold China responsible for its role in the spread of the pandemic via the Convention on International Civil Aviation. They consider the possible violations of international aviation law, including Article 14 (on the ‘prevention of spread of disease’) and argue that article should be read in conjunction with Annex 9, which include reference to the WHO’s International Health Regulations (2005).

Emma Luce Scali, in light of which might be called sovereign “(over)borrowing” during the COVID-19 pandemic, asks whether creditors have a responsibility in international law to prevent unsustainable debt situations. 

Book Discussion: Don Herzog’s Sovereignty RIP

After beginning the discussion with Don Herzog’s introductory post, Jack Goldsmith asked whether anyone really still buys the classic theory of sovereignty anyway. 

Neil Walker while agreeing with much of Herzog’s critique, was concerned that Herzog is in ‘danger of throwing the baby out with the bathwater – or if you prefer, burying the living alongside the undead’ because in Walker’s view the concept of sovereignty still has important work to do. 

Heike Krieger’s review suggests that the word ‘sovereignty is more of a blunt political term – a politischer Kampfbegriff (term of political struggle) …  – than a core substantive legal concept or argument.’

James Gathii notes that ‘dissect[ing] the classic concept of sovereignty comes with some costs’ including that this analysis tends to ‘glide over the deeply Eurocentric, American-centric, orientalizing assumptions embedded in these discussions and discourses of sovereignty.’

Don Herzog concludes the book discussion, addressing the posts and sticking ‘unrepentantly’ to his argument that the concept of sovereignty should be buried, if not ‘murdered’.

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