Two Weeks in Review, 8 – 21 November 2021

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:

• Andreas Follesdal and Steven R. Ratner open the discussion which spanned two weeks with an introduction to the book and to the symposium.
• Adil Ahmad Haque thinks Kelsen is missing from David Lefkowitz in his reading of the book. Read ‘International Law: System or Set?’ here.
• In her contribution to the book discussion, Carmen Pavel reflects on the rule of law and its ideals, thinking about how many of these apply to international law. 
• Nicole Roughan picks up the discussion by Lefkowitz of the legitimacy of international law and of its authority and pushes him to say more on the reasons at stake in thinking about legitimate authority and international law’s claim to authority. Read Roughan’s ‘Comment on Lefkowitz, Philosophy and International Law’ here.
• Alejandro Chehtman calls for a more granulated picture of the law of armed conflict (LOAC), especially in regard to combatant status and privilege, if we are to establish a ‘morally best’ LOAC. Read Chehtman’s reflections on Philosophy and LOAC here.
• David Lefkowitz responds to each of the contributors in his concluding post.

Posts

Filippo Fontanelli 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.’ 

Gabriel M. Lentner 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. 

Lea Raible 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. 

Louise Majetschak and Lena Riemer 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.

Frédéric Mégret and Sheila Paylan 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.

• 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. 

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