Research & publications 2018

TR: Office of the Prosecutor (OTP) investigations into crimes of aggression should not depend on a green light from the UN Security Council. The OTP should, however, be careful not to exercise its competence in such a way as to undermine the legal framework governing the use of force.

This article presents the legal conundrums arising from non-United Nations (UN) sanctions adopted by States as a means to enforce international law. Though the international legal system has developed various categories of self-help measures—from forcible acts of self-defence to non-forcible acts of retorsion or countermeasures—applying these labels to State practice can be challenging. These complexities are perceptible in the US sanctions adopted against Russia for its alleged role in the Ukrainian crisis. Assessing the legality of the US sanctions leads to questions regarding the nature of Russia’s actions in Ukraine, the purpose of the sanctions, who is targeted and why, the US standing to respond to Russia’s policies in Ukraine, etc. This article provides tentative answers but ultimately points to the gray areas governing non-forcible measures. It follows that, despite appearances, the legal framework governing non-UN sanctions is messy in practice and leads to more open-ended questions than reassuring answers. The difficulty in applying seemingly clear-cut legal rules to unilateral sanctions is perhaps due to the fact that States principally conceive of sanctions as policy tools and do not necessarily adopt unilateral acts to enforce legal obligations. Consequently, if international law wants to have an impact on State practice and provide for effective enforcement it is necessary to bridge the gap between legal theory and political practice.

A fair and effective regime regulating benefit-sharing of marine genetic resources (MGR) in areas beyond national jurisdiction (ABNJ) must consider the inclusion of developing states, support scientific research and safeguard investments of the private sector. The present innovative proposal ensures a delicate balance through an approach based on open access, albeit with limitations. Access to MGR in ABNJ is facilitated, but conditional on the public release of collected samples and raw data. Adoption of the open access principle guarantees a powerful form of non-monetary benefit-sharing. The balance is maintained by the option for an extended embargo period, allowing samples and data to be kept confidential for a certain period, against payment to a biodiversity contribution fund. Monetary benefit-sharing, as a sector-negotiated percentage on revenue, could be imposed at the point of product commercialisation, and would offer a tangible payment system with a low transaction cost.

The latest Digest of State Practice, covering jus ad bellum practice in the period 1 January - 30 June 2017, is now available online. It was edited by GRILI members Tom Ruys,  Luca Ferro and Carl Vander Maelen (UGent).

The latest Digest of State Practice, covering jus ad bellum practice in the period 1 July - 31 December 2017, is now available online. It was edited by GRILI members Tom Ruys, Carl Vander Maelen and Sebastiaan Van Severen, and by Nele Verlinden (KU Leuven).

The law of neutrality and the principle of non-intervention both promulgate neutrality norms pertaining to third-state assistance for belligerent parties embroiled in an international or non-international armed conflict. This article compares and contrasts these two legal frameworks and assesses whether they work in perfect harmony or, on the contrary, establish different standards of behaviour depending on the type of armed conflict. Additionally, by approaching both regulatory frameworks simultaneously, conceptual uncertainties hindering their effective application in practice can be clarified. It is submitted that by adopting such a holistic approach, fresh insights are offered on the “duty of neutrality”, sensu lato, during armed conflicts under international law.

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

The field of ‘critical indigenous rights studies’ is a complex one that benefits from an interdisciplinary perspective and a realist (as opposed to an idealised) approach to indigenous peoples. This book draws on sociology of law, anthropology, political sciences and legal sciences in order to address emerging issues in the study of indigenous rights and identify directions for future research.

The first part of the volume investigates how changing identities and cultures impact rights protection, analysing how policies on development and land, and processes such as migration, interrelate with the mobilisation of identities and the realisation of rights. In the second part, new approaches related to indigenous peoples’ rights are scrutinised as to their potential and relevance. They include addressing legal tensions from an indigenous peoples’ rights perspective, creating space for counter-narratives on international law and designing new instruments.

Throughout the text, case studies with wide geographical scope are presented, ranging from Latin America (the book’s focus) to Egypt, Rwanda and Scandinavia.

On 15 July 2016, an attempted military coup took place in Turkey, which left 246 dead and 2194 wounded, and sent a shockwave through Turkish society. The response from Ankara followed swiftly. On 21 July 2016, the Turkish Government imposed a nationwide state of emergency, and notified its intention to derogate from the European Convention on Human Rights (ECHR). Numerous emergency decrees were promulgated, providing for the closure of more than 3000 schools, media outlets and so on, as well as the detention and arrest of several tens of thousands of individuals. One of the key features of the Turkish Government’s response concerns the dismissal, and exclusion from public service, of more than 130,000 judges, prosecutors, military personnel, police officers, teachers and other civil servants. Having regard to a number of recent admissibility decisions which make clear that the European Court of Human Rights is unlikely to address the matter soon, this article critically examines this unprecedented ‘purge’ from the perspective of ECHR law. It specifically focuses on the application of Article 8 of the ECHR and Article 6 together with Article 13 of the ECHR, drawing analogies with the European Court’s case-law on lustration proceedings. It finds that, even having regard to the exceptional circumstances at hand as well as the Turkish derogation from the ECHR, the Turkish ‘purge’ of public servants cannot be reconciled with the state’s obligations under the ECHR.

By applying the social concepts of collective memory and social identity, this chapter explores how parties in an intractable conflict appropriate and interpret international law where existential issues are at stake. It does so by using the dispute on the legal nature of the occupied Palestinian territories as a case study and by analysing the arguments put forth by Israel and Palestine during the proceedings before the United Nations General Assembly and the International Court of Justice in the context of the advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” The paper concludes that in intractable conflicts where existential issues are at stake for both parties, law is appropriated and integrated into group narratives, enabling them to extend their conflict-based policies by other means. If law can help channel and frame the dispute, it cannot impose peace upon either party.

The latest Digest of State Practice, covering jus ad bellum practice in the period 1 January - 30 June 2018, is now available online. It was edited by GRILI members Tom Ruys, Carl Vander Maelen and Sebastiaan Van Severen.

Sanctions are commonly understood as a means to enforce international law in the global order. In legal doctrine, the focus is generally on these measures’ coercive purpose. Nevertheless, sanctions can serve other policy objectives. Of particular relevance for the international legal order is a sanction’s stigmatization function. In this case, states and regional, or international, organizations adopt sanctions in reaction to behaviour that breaches an international norm in order to signal their commitment to that norm and to stigmatize the alleged wrongdoer as a deviant. Because processes of stigmatization help distinguish accepted behaviour from rejected behaviour, they contribute to the formation of the international legal order. Importantly, targeted states do not simply accept their status as deviants. Rather, they align with groups of states that contest the adoption of unilateral coercive measures. They respond to stigmatization by affirming the norms that constitute their version of the international legal order. The practices of justifying and contesting sanctions thus reveal the tug of war between different groups of states that seek to determine the norms that lie at the foundation of the international legal order and how they should be enforced.

The present paper focuses on the recent adoption and implementation by the United States of the so-called Global Magnitsky Act, in particular inasmuch as it allows for the imposition of targeted sanctions against corrupt foreign officials, as well as the enactment of similar legislation in other countries. Given the tendency to transfer the gains of grand corruption abroad, the recourse to targeted sanctions against corrupt officials potentially offers a useful tool in the international fight against corruption and could accordingly be seen as a way of furthering the aims of the UN Convention against Corruption and of the UN more generally. On the other hand, as the article explains, the use of asset freezes in this context also raises a variety of questions, both in terms of the legality of such practice, as well as in terms of their effectiveness and legitimacy.

The activation of Articles 8bis, 15bis and 15ter of the Rome Statute in July 2018 has once again fuelled debates over the prosecution of the crime of aggression. While various flaws and imperfections of the Kampala Amendments have attracted scholarly attention in recent years, the present article focuses on one particular source for concern – that is, the implica- tions that the activation of the International Criminal Court’s (ICC) jurisdiction may have for the legal regime governing the use of force between states. It is assumed at the outset that, even if investigations into alleged crimes of aggression may not occur on a frequent basis, sooner or later the ICC will inevitably be called upon to apply Article 8bis of the Rome Statute. Indeed, even if the majority of situations dealt with by the Court pertain to non- international armed conflicts, there have also been a number of situations involving an inter - national/interstate element. In essence, each such situation potentially raises jus contra bellum concerns and may accordingly lead to allegations that the crime of aggression has been committed. Even if the lion’s share of these allegations is unlikely to make it past the preliminary examination or investigation phases, the way in which the ICC prosecutor and the Pre-Trial Chambers play their role as gatekeepers with regard to the crime of aggression is bound to have strong repercussions for the interpretation and compliance pull of the law on the use of force. This article first addresses the possible impact of the ICC’s jurisdiction over the crime of aggression on the recourse to, and acceptance of, unilateral humanitarian intervention, before addressing other ways in which it may influence the international legal framework governing the use of force.

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.