Two Weeks in Review, 9 – 22 November 2020

EJIL:Live! 

In this new episode of EJIL: Live! Professor Joseph Weiler, Editor in Chief of EJIL, speaks with Jan Klabbers, Professor of International Law at the University of Helsinki, Finland, and Guy Fiti Sinclair, Senior Lecturer at Victoria University of Wellington Law School, New Zealand. This interview focuses on the Symposium convened by the two speakers in EJIL’s 31:2 issue: “Theorizing International Organizations Law”. Taking as its starting point the question of why international organizations law has not seen the development of established schools of thought or theoretical approaches to the discipline, the conversation delves into the conceptual choices made by the convenors in developing the symposium. 

Recent Posts

Spotlight on Nagorno-Karabakh

A number of posts have focused on the international law issues arising due to recent events in Nagorno-Karabakh.

Bernhard Knoll-Tudor and Daniel Mueller review the various claims brought by Azerbaijan and Armenia regarding the status of Nagorno-Karabakh over the last three decades, and comment on issues concerning the use of force, self-determination, secession as well as on the chances that the enclave’s final status will be settled.

Dapo Akande and Antonios Tzanakopoulos disagree with the view adopted by Mueller and Knoll-Tudor and by Tom Ruys and Felipe Rodríguez Silvestre in a post over at Just Security. They instead argue that the point in this case is not whether an unlawful occupation constitutes a continuing armed attack, but whether any occupation that is the direct consequence of an armed attack constitutes a continuing armed attack. Akande and Tzanakopoulos posit that an occupation resulting from an armed attack on another state is a continuing armed attack and that the attacked state does not lose its right to self-defence simply because of passage of time.

Other Posts

Stefan Salomon looks at the rights held by citizens and unauthorized migrants and argues that the operation of immigration law has created racialized subjects and actually undermines the normative basis of citizenship in liberal democracies. Salomon argues there is a choice for governments: either they adopt more restrictive immigration regimes, making citizenship more exclusive and fragmented, or they can limit the reach of immigration regime and make citizenship more inclusive.

Marko Milanovic reviews the extraterritoriality issues found in the UN Committee on the Rights of the Child case L.H. et al v. France. The Committee found that France had jurisdiction over children in Kurdish-controlled camps in Syria who are French nationals and are there because of their parents’ involvement with ISIS. Milanovic argues that the Committee appears to, by embracing an expansive approach to extraterritoriality, reach the most human rights-friendly of outcomes. Yet he argues the reliance on nationality might not be a good thing and should not be uncritically applied in other cases.

Diane Desierto, Anibal Perez-Linan, Khawla Wakkaf, Rachel Gagnon and Belen Carriedo look at the resolution adopted by the World Bank’s Board of Executive Directors establishing the World Bank Accountability Mechanism and examine various features of the new Mechanism, finding that there is significant deference to Bank Management built into the process.

Jessica Schechinger looks at the international law issues arising from the Nave Andromeda incident involving seven stowaways. The incident became a human rights issue, a maritime security issue, and a law of the sea issue, while also impacting domestic law and, as Schechinger explores, could, in other cases, raise issues under refugee law. 

Helen Duffy and Lucy Maxwell address some of the human rights issues that arise in the context of climate change. They consider two issues addressed recently in the Norwegian Supreme Court case People v. Arctic Oil: the geographic scope of Norway’s human rights obligations, and the threshold of risk required to trigger the State’s positive obligations under the ECHR. 

Diane Desierto discusses features of the dispute settlement system of the Regional Comprehensive Economic Partnership (RCEP), signed recently by the ten ASEAN Member States and five other trading partners (Japan, the People’s Republic of China, South Korea, Australia, and New Zealand). Desierto concludes that the RCEP appears thinner on environmental and social safeguards and regulatory freedoms, and that the system reflects an emphasis on bilateral, regional, or plurilateral consultations, before resorts are made to adversarial dispute settlement mechanisms.

Dr Hemi Mistry looks at the fundamentally flawed amendment to the UK Trade Bill, which purports to express the UK’s commitment to accountability for genocide through the UK’s post-Brexit trade policy. Mistry instead proposes that the amendment instead be constructed around crimes against humanity, which would include atrocities that could be characterised as genocide, as it would avoid the legal difficulties and political and moral issues associated with genocide.

Douglas Guilfoyle considers some of the issues related to trust, which is either completely lacking or severely eroded throughout the institution, and tenure that feature in the International Criminal Court Independent Expert Review, and ponders how both these issues might be addressed in a way that “is fair, fit for purpose, and capable of providing the Court with the best expertise with the widest geographical representation”.

Finally, Marko Milanovic posted the opening statement by Justice Robert Jackson as he served as the Chief US Prosecutor at the International Military Tribunal, marking 75 years since this momentous moment in the history of international law. 

You can catch up and read all the recent Announcements and Events here.