Two Weeks in Review, 8 – 21 November 2021

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Book Discussion

The discussion of David Lefkowitz’s book Philosophy and International Law: A Critical Introduction continued in the last couple of weeks. Here are all the posts in the book discussion for you to use to catch up on the symposium if you missed out:

Posts

 addresses the recent applications lodged by Armenia and Azerbaijan against each other before the ICJ and reflects on the trend of using compromissory clauses to litigate only one element of what is really a broader conflict and the rise of CERD litigation before the Court. Fontanelli concludes by suggesting that the Court is stuck in the middle while ‘Applicants squeeze any available compromissory clause to bring a lawsuit today [and] drafters make sure to minimise exposure to such lawsuits tomorrow.’ 

 writes about the recent decision by the ICC Appeals Court in the case against Ali Kushayb which engaged questions of the application of the principle of legality before the ICC in situations where a non-party state is referred to the Court by the UNSC. Lentner suggests that the ICC has adopted a presumption of ‘foreseeability’ – that ‘individual could have reasonably expected to face prosecution under national or international law’ – with respect to the crimes within its jurisdiction but argues the reasoning for this is a little ambiguous. 

 notes some risks and shortcomings in the ‘rights turn’ in climate change litigation in her post coinciding with the end of COP26. The shortcoming is that human rights are ‘primarily a national affair’ when climate change is a global problem which leads to accountability gaps in choosing the correct fora and establishing complex fact patterns. The risk, according to Raible, is that a focus on right holders and duty bearers does not address the distributive justice concerns that are so key to climate justice. Raible concludes by saying that human rights should only be part of the solution to achieving climate justice. 

and  argue that Poland is violating human rights ‘on a massive scale’ through its policy of ‘pushing back’ migrants to Belarus and the construction of a border fence. They argue these policies violate the prohibition of degrading and inhuman treatment and the prohibition of collective expulsion under the ECHR.

and  develop the argument that it is possible that acts of self-defense might also be subject to human rights limitations and use the Nagorno-Karabakh as a compelling case. They suggest that these acts typically ‘fall through the cracks’ of jus in bello and jus ad bellum and that a human rights informed approach might help flesh out the ‘notoriously underdeveloped’ principle of proportionality in jus ad bellum.

Symposium

We are in the middle of hosting a joint symposium with Articles of War on the Oxford Forum for International Humanitarian Law Compliance.

All recent Events and Announcements can be found here.

The European Journal of International Law has new advance articles and advance reviews available to read online.

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