Research & publications In the spotlight

Klaas Willaert
Publication
20-09-21
Regulating deep sea mining: a myriad of legal frameworks

The wide array of activities which we refer to as deep sea mining are not governed by one universal framework. On the contrary, numerous legal instruments play a role and it is important to maintain a clear overview. The United Nations Convention on the Law of the Sea (UNCLOS) evidently sets out the overarching regime, but important distinctions must be made. For example, deep sea mining in the Area is subject to international regulations adopted by the International Seabed Authority (ISA), while similar activities on the continental shelf fall under national jurisdiction and are governed by domestic legislation of the coastal state. This dichotomy must be nuanced, however, taking into account that non-state actors conducting deep sea mining operations in the Area must also adhere to national laws of the sponsoring state, while mineral exploration and exploitation on the continental shelf are likewise subject to a number of international rules and principles. Moreover, separate exploration regulations were adopted by the ISA for distinct categories of mineral resources, and national legislation on deep sea mining is quite diverse. This monograph intends to clearly identify all relevant legal instruments, assess their role, explain their interactions and engage with some of the topical issues that surround them.

Klaas Willaert
Publication
16-08-21
Under pressure: the impact of invoking the two year rule within the context of deep sea mining in the Area

(2021) INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW

At the end of June 2021, Nauru requested the ISA Council to complete the adoption of the rules, regulations and procedures necessary to facilitate the approval of plans of work for exploitation in the Area within two years’ time, pursuant to Section 1(15) of the Annex to the 1994 Implementation Agreement. If the exploitation regulations are not completed within that timeframe and an application for exploitation activities is pending, the Council must nonetheless consider it, but it is unclear on what basis such an application would need to be evaluated and what the nature and effects of a provisional approval are. In order to assess the precise impact and aftermath of invoking the ‘two year rule’, this short article explores the different legal interpretations and provides thoughts on the way forward.

Luca Ferro
Publication
12-05-21
Killing Qasem Soleimani: International Lawyers Divided and Conquered

Case Western Reserve Journal of International Law, volume 53(1)

This article first sets out the facts surrounding the killing of Iranian Major-General Qasem Soleimani by U.S. drone strikes on 3 January 2020 as reported by media outlets and widely relied upon by international legal experts. It then delves into the analysis by no less than 15 of them who co-authored 11 legal briefs of varying depth, all tackling (to some extent) the same question: Was Soleimani’s killing in conformity with the relevant requirements of international law, consisting of the jus ad bellum (“JAB”), jus in bello (“JIB”) and international human rights law (“IHRL”)? However, there was little consensus among the experts – if any.

The article hopes to better understand why international lawyers disagree so spectacularly by comparing and contrasting the variety of views in the Soleimani-case and stripping down the supporting argumentation to uncover the underlying (theoretical and methodological) approach. This is then followed by some final reflections. More generally, it hopes to spark a much-needed debate by identifying a worrying trend in international legal scholarship that seemingly allows each controversial interpretation to stand, and taking a swing at offering preliminary explanations rather than present a definitive solution to a perennial concern in international law.

After all, if the “invisible college of international lawyers” cannot even decide on the disputed legality of a State unapologetically taking out the military brass of its arch-enemy on the territory of a neutral country, it is difficult to see what remains of the prohibition on the use of force – the cornerstone of the Charter of the United Nations and international law more broadly.

Tom Ruys Felipe Rodriguez Silvestre
Publication
25-03-21
Military Action to Recover Occupied Land: Lawful Self-defense or Prohibited Use of Force? The 2020 Nagorno-Karabakh Conflict Revisited

(2021) 97 International Law Studies, pp. 665-738

In September 2020, heavy fighting erupted between Armenia and Azerbaijan in and around Nagorno-Karabakh, a region of Azerbaijan long controlled by Armenia. After two months of military confrontations, a tripartite ceasefire was concluded, drastically altering the pre-existing territorial status quo.

The "Second Nagorno-Karabakh War" brings to light a fundamental question for international law on the use of force—and one that has received limited attention in legal doctrine. The question is this: when part of a State’s territory is occupied by another State for an extended period of time, can the former still invoke the right of self-defense to justify military action aimed at recovering its land?

The present article provides a broad appraisal of this question, examining the arguments for and against. In particular, it examines the conditions of self-defense—and whether occupation might be construed as a “continuing” armed attack. It subsequently addresses the relevance of the principle of the non-use of force to settle territorial disputes as well as the role of armistice and ceasefire agreements, before turning to relevant State practice. Ultimately, the authors agree with the Ethiopia Eritrea Claims Commission that “any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law.”

Tom Ruys Cedric Ryngaert
Publication
27-10-20
Secondary Sanctions: A Weapon out of Control? The International Legality of, and European Responses to, US Secondary Sanctions

(2020) British Yearbook of International Law, 116 p.

The US is increasingly weaponizing economic sanctions to push through its
foreign policy agenda. Making use of the centrality of the US in the global
economy, it has imposed ‘secondary sanctions’ on foreign firms, which are
forced to choose between trading with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has penalized foreign
firms for breaching US sanctions legislation. In this contribution, it is argued
that the international lawfulness of at least some secondary sanctions is
doubtful in light of the customary international law of jurisdiction, as well as
conventional international law (eg, WTO law). The lawfulness of these sanctions could be contested before various domestic and international judicial
mechanisms, although each mechanism comes with its own limitations. To
counter the adverse effects of secondary sanctions, third states and the EU
can also make use of, and have already made use of, various non-judicial
mechanisms, such as blocking statutes, special purpose vehicles to circumvent
the reach of sanctions, or even countermeasures. The effectiveness of such
mechanisms is, however, uncertain.

Tom Ruys (editor) Nicolas Angelet (editor) Luca Ferro (assistant editor)
Publication
06-05-19
The Cambridge Handbook of Immunities and International Law

Few topics of international law speak to the imagination as much as international immunities. Questions pertaining to immunity from jurisdiction or execution under international law surface on a frequent basis before national courts, including at the highest levels of the judicial branch and...

The volume comprises 34 chapters including contributions by GRILI members Tom Ruys and Luca Ferro

Full list of authors: Tom Ruys, Nicolas Angelet, Luca Ferro, Hazel Fox, Lori Fisler Damrosch, Wenhua Shan, Peng Wang, Alexander Orakhelashvili, Yas Banifatemi, Sally El Sawah, Catherine Amirfar, Niels Blokker, Kristen E. Boon, Ramses A. Wessel, Jean-Marc Thouvenin, Victor Grandaubert, Ingrid Wuerth, Cedric Ryngaert, Matthew Happold, Eric De Brabandere, Mark A. Cymrot, Mathias Audit, Maria-Clara Van Den Bossche, Frédéric Dopagne, Sanderijn Duquet, Eileen Denza, Andrew Sanger, Michael Wood, Muriel Ubéda-Saillard, Rosanne Van Alebeek, Chimène I. Keitner, Christian Walter, Fabian Preger, Aurel Sari, Rosa Freedman, Nicolas Lemay-Hébert, Harmen Van Der Wilt, Pierre D'argent, Pauline Lesaffre, Phillipa Webb and David P. Stewart.

Jan Wouters Cedric Ryngaert Tom Ruys Geert De Baere
Publication
20-12-18
International Law: a European Perspective

This textbook offers for the first time a comprehensive analysis of the classic doctrines and main areas of international law from a European perspective, meeting the needs of the many European law schools teaching public international law in English. Special attention is devoted to the practice of the European Union, the Council of Europe and European States – both civil law and common law countries – with regard to international law. In particular the book analyses the interplay between international law, EU law and national law in the case law of the Court of Justice of the EU, the European Court of Human Rights and national jurisdictions in Europe. It provides the reader with insights into how the international legal practice of the EU and its Member States impacts the development of international law, both in terms of doctrines such as treaty-making and customary law, the exercise of (extraterritorial) jurisdiction, state responsibility and the settlement of disputes, as well as particular sub-fields of international law, such as human rights law and international economic law. In addition the book covers other important areas such as the use of force and collective security, the law of armed conflict, and global and regional international organisations. It provides European perspectives on all these issues and will be of great value to students, scholars and practitioners.

Tom Ruys (editor) Olivier Corten (editor) Alexandra Hofer (assistant editor)
Publication
14-05-18
The Use of Force in International Law: a Case-based Approach

The international law on the use of force is one of the oldest branches of international law. It is an area twinned with the emergence of international law as a concept in itself, and which sees law and politics collide. The number of armed conflicts is equal only to the number of methodological...

The volume comprises 66 chapters including contributions by GRILI members Tom Ruys, Alexandra Hofer and Luca Ferro.

Full list of authors: Constantine Antonopoulos, Karine Bannelier, Janina Barkholdt, Susan Breau, Wenke Brückner, Michael Byers, Enzo Cannizzaro, Kenneth Chan, Théodore Christakis, Olivier Corten, Fanny Declercq, Ashley Deeks, Oliver Dörr, François Dubuisson, Luca Ferro, Mathias Forteau, Gregory H. Fox, Daniel Franchini, Tarcisio Gazzini, Terry D. Gill, Christine Gray, James A. Green, Douglas Guilfoyle, Andrea de Guttry, Gerhard Hafner, Nabil Hajjami, Wolff Heintschel von Heinegg, Mohamed S. Helal, Christian Henderson, Etienne Henry, Alexandra Hofer, Jörg Kammerhofer, Maurice Kamto, Pierre Klein, Robert Kolb, Marcos Kotlik, Vaios Koutroulis, Claus Kreß, David Kretzmer, Dino Kristiotis, Jean-Christophe Martin, Lindsay Moir, Sean D. Murphy, Anne Lagerwall, Eliav Lieblich, Georg Nolte, Benjamin K. Nußberger, Mary Ellen O'Connell, Alexander Orakhelashvili, Ki-Gab Park, Mónica Pinto, Erin Pobjie, John Quigley, Aurora Rasi, Theresa Reinold, Natalino Ronzitti, Tom Ruys, Alison See, Ying Xiu, Paulina Starski, Raphaël Van Steenberghe, Christian J. Tams, Kinga Tibori-Szabó, Dire Tladi, Kimberley N. Trapp, Nicholas Tsagourias, Antonios Tzanakopoulos, Agatha Verdebout, Ugo Villani, Christian Walter, Marc Weller, Erika de Wet, Nigel White, Myra Williamson, Sir Michael Wood

Eva Brems Ellen Desmet
Publication
04-10-17
Integrated Human Rights in Practice Rewriting Human Rights Decisions

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.

Eva Brems Ellen Desmet Wouter Vandenhole
Publication
27-06-17
Children’s Rights Law in the Global Human Rights Landscape

Children’s rights law is often studied and perceived in isolation from the broader field of human rights law. This volume explores the inter-relationship between children’s rights law and more general human rights law in order to see whether elements from each could successfully inform the other. Children’s rights law has a number of distinctive characteristics, such as the emphasis on the ‘best interests of the child’, the use of general principles, and the inclusion of ‘third parties’ (e.g. parents and other care-takers) in treaty provisions. The first part of this book questions whether these features could be a source of inspiration for general human rights law. In part two, the reverse question is asked: could children’s rights law draw inspiration from developments in other branches of human rights law that focus on other specific categories of rights holders, such as women, persons with disabilities, indigenous peoples, or older persons? Finally, the interaction between children’s rights law and human rights law – and the potential for their isolation, inspiration or integration – may be coloured or determined by the thematic issue under consideration. Therefore the third part of the book studies the interplay between children’s rights law and human rights law in the context of specific topics: intra-family relations, LGBTQI marginalization, migration, media, the environment and transnational human rights obligations.