Research & publications 2021

On December 7, 2020, the Council of the European Union adopted two legal instruments, Council Decision (CFSP) 2020/1999 and Council Regulation (EU) 2020/1998, which together make up the new EU Global Human Rights Sanctions Regime (EUGHRSR). Similar to the U.S. “Global Magnitsky Act,” and in contrast with the EU's existing country-specific sanctions regimes, the EUGHRSR seeks to address human rights abuses worldwide, by providing for the imposition of travel bans as well as financial sanctions on individual human rights offenders—state and non-state alike. The list of designated (natural and legal) persons will be reviewed on a periodic basis.

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.”

The 2016 US Presidential Election was marred by (cyber-)meddling allegedly directed by Russia and aimed at sowing discord in the political system, boost Donald Trump’s election chances, and steal voter data and other sensitive information. Using that alleged Russian involvement in the 2016 election as a case study, this article examines its legality under public international law. Numerous books, articles and blog posts have since dealt with this issue, focusing on (all or some of) such primary international legal norms as the principle of sovereign equality of States, the principle of non-intervention, the right to self-determination, the duty of due diligence and the human right to privacy. Almost without exception, although expressed with varying degrees of confidence, commentators concluded that one or more of these norms were violated leading up to the 2016 election, resulting in a fragile yet broad academic consensus on the illegality of the Russian operation and, by extension, voter influence operations (or VIOPS).

This article aims to revisit and challenge that consensus. It starts with an overview of case facts as well as the domestic and international reactions to which they gave rise in Section 2. Section 3 then zooms in on three key (and interrelated) international legal norms: sovereignty, non-intervention and self-determination. It applies these legal standards (as interpreted) to the facts (as assumed). Finally, Section 4 wraps up the legal analysis and concludes.

Critics of the so-called negative equality doctrine, which prohibits third-state military intervention upon invitation by a government embroiled in civil war, point to recent contravening practice together with a generally passive or politically supportive attitude by states to substantiate their views. If, however, a prohibition indeed remains the starting point under the lex lata, that critical view largely depends on the legal transformation of state silence into acquiescence.

This article contests such a transformation based on the accepted conditions for acquiescence to arise, concerns which are confirmed by two case studies on interventions in the Libyan and Yemeni civil wars. As a result, states’ inaction to controversial military operations rarely qualifies as ‘negative opinio juris’. Indeed, the erosion of customary international norms, especially those that regulate sending troops to war, surely requires more than a few deviant states and a regrettable but legally inconsequential apathy by the international community.

In order to engage in deep sea mining activities on the international seabed (otherwise known as “the Area”), non-state actors must be sponsored by a state, which bears the responsibility to ensure that the sponsored entity complies with the applicable rules. Not only the state of nationality, but also the state which exercises “effective control” might be required to serve as a sponsoring state, depending on the circumstances. However, it is not completely clear how “effective control” should be interpreted. Forum shopping seems a realistic possibility and the recent trend of partnerships between private deep sea mining companies and developing states can produce similar effects. These collaborations might be beneficial to both parties, but given the privileges awarded to developing states, it should be scrutinized whether such partnerships do not undermine the principle of the common heritage of mankind and the objective to realize benefits for mankind as a whole.

In many of the Pacific Islands, local communities have long-held cultural and spiritual attachments to the sea, in particular to species and specific marine areas, processes, habitats, islands, and natural seabed formations. Traditional knowledge, customary marine management approaches and integrated relationships between biodiversity, ecosystems and local communities promote conservation and ensure that marine benefits are reaped in a holistic, sustainable and equitable manner. However, the interaction between local traditional knowledge, contemporary scientific approaches to marine resource management and specific regulatory frameworks has often been challenging. To some extent, the value of community practices and customary law, which have provided an incentive for regional cooperation and coordination around ocean governance, is acknowledged in several legal systems in the Pacific and a number of regional and international instruments, but this important connection can be further enhanced. In this article we present a science-based overview of the marine habitats that would be affected by deep seabed mining (DSM) along with an analysis of some traditional dimensions and cultural/societal aspects of marine resource management. We then assess whether the applicable legal frameworks at different levels attach sufficient importance to these traditional dimensions and to the human and societal aspects of seabed (mineral) resource management in the region. On basis of this analysis, we identify best practices and formulate recommendations with regard to the current regulatory frameworks and seabed resource management approaches. Indeed, the policies and practices developed in the Pacific could well serve as a suitable model elsewhere to reconcile commercial, ecological, cultural and social values within the context of deep sea mineral exploitation in addition to sustaining the Human Well-being and Sustainable Livelihoods (HWSL) of the Pacific communities and the health of the Global Ocean.

Given the significant commercial interests and huge investments in deep sea mining, it comes as no surprise that states and private enterprises are not only pursuing exploration and exploitation activities in the Area, but are also targeting mineral-rich patches on the continental shelf. Indeed, it must be noted that the same mineral resources that deep sea mining actors are keen to exploit in the Area, are also available within zones falling under national jurisdiction. However, crossing this legal border results in a different legal regime, as activities on the continental shelf are governed by the national legislation of the coastal state and are, therefore, not subject to the comprehensive international regime applicable to the Area. Nevertheless, a similar duty to provide financial contributions to the International Seabed Authority exists in case of exploitation activities on the continental shelf beyond 200 nautical miles. Taking into account that this payment system was already established by the Law of the Sea Convention back in 1982, it is necessary to assess to what extent the modalities and tariffs relate to the ones that are now being considered for its counterpart in the Area. Can we discern a logical balance or is deep sea mining on the extended continental shelf subject to discount rates and advantageous provisions? In order to clear this up, this article thoroughly analyzes the existing legal framework and the proposals which are currently being discussed at the International Seabed Authority, followed by a general comparison and several useful considerations.

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.

This chapter studies the idea that Americans and Europeans hold different views on global security. Generally, it is considered that the EU side demonstrates a stronger adherence to positivism in international law, while the US adopts policy-oriented methodologies. This translates into different views of the actual content of the UN Charter rules on the use of force, for example of the permissibility of self-defense against attacks by non-State actors, calls for new exceptions to the prohibition of the use of force and in relation to controversial issues, such as the legality of the anticipatory self-defense. The chapter offers a critical look at the alleged difference by studying the US-led military coalition fighting against the so-called Islamic State (IS) in Iraq and Syria. This reveals a gradual acceptance of the more expansionist interpretation put forward by the US. Indeed, the case of the US-led military coalition against IS is one where European States - and several other western States - originally steered clear from murky legal grounds only to find themselves ultimately embracing an extensive reading of the right of self-defense, and relying for the first time, whether explicitly or implicitly, on the controversial “unable and unwilling” doctrine to justify military operations abroad.

On Thursday 2 and Friday 3 December 2021, the Ghent Rolin-Jaequemyns International Law Institute (GRILI) and the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) will host a two-day international conference on secondary sanctions. The conference seeks to explore both the international legal framework governing such sanctions and the potential remedies to challenge them, as well as how these measures may shape the international legal order. The conference will feature separate panels devoted to discuss the impact of secondary sanctions; their compatibility with the law of jurisdiction and international economic law, and; to commercial practices and domestic litigation pertaining to secondary sanctions. A final panel will offer an outlook for the future, having regard, for instance, to the preparation of an EU ‘anti-coercion instrument’. In addition, the organizers are inviting promising legal scholars in an earlier stage of their academic career to submit an abstract to participate in a panel dedicated to ‘emerging voices’.

Possible topics include, but are not limited to:

• specific sanctions regimes, e.g. the re-imposition of US sanctions against Iran, the NordStream2 sanctions, or Title III of the Helms-Burton Act;
• specific proceedings at the international, regional or national level (e.g. the 1955 Treaty of Amity case (ICJ); the Bank Melli case (CJEU); or the Meng Wanzhou case (Canada));
• the international legality of re-exportation restrictions based on the origin of certain goods;
• extradition proceedings in connection with breaches of secondary sanctions;
• the enforcement of the EU Blocking Statute;
• secondary sanctions’ impact on inter-state relations, their compatibility with the principles that govern the international legal order; etc.

Critical and interdisciplinary approaches to secondary sanctions are also welcome. Interested participants are invited to take a closer look at the provisional conference programme (attached) to limit overlap with other panels/speakers. Abstracts are due by 30 June 2021 and should be accompanied by a brief curriculum. Applicants will be informed of the outcome by 31 July 2021, while full papers are due by 15 November 2021. Subject to peer review, the selected papers will be included in an edited volume to appear in 2022/23.

For more information, including possible travel and accomodation funding, see the attached PDF file.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a comprehensive international regime, which determines by whom and under what conditions these natural resources can be exploited. However, the same mineral resources that deep sea mining actors are keen to exploit in the Area, are also available within zones falling under the exclusive jurisdiction of coastal states. So even if strict rules and precise standards would be enforced with regard to seabed mining operations in the Area, similar activities within a coastal state’s national jurisdiction remain unchecked by international law. Therefore, the question can be raised whether this might lead to substandard exploitation of the minerals of the seabed without adequate supervision? This article tests this assumption in a detailed case study of the relevant legislation of the Cook Islands, comprising the 2017 Marae Moana Act and the 2019 Cook Islands Seabed Minerals Act. Following a concise analysis of the competences of coastal states on their continental shelf, the domestic laws of the Cook Islands are critically compared with the international legal framework governing the Area, to assess whether they contain equivalent rules, mechanisms and safeguards.

The operationalization of the Enterprise, which was conceived as the operational arm of the International Seabed Authority (ISA) and can be considered a crucial component of the international deep seabed regime, still lies in wait and remains plagued by several outstanding matters. In this article, the characteristics and underlying objectives of the Enterprise are analyzed, along with a number of lingering issues and current developments that seem to complicate its establishment as an autonomous organ of the ISA. Although years of inaction have resulted in a significant backlog, it is argued that the ISA must treat the operationalization of the Enterprise as a top priority, since further delay will not only jeopardize the operationalization process, but might also limit the Enterprise’s options and use in the future. An Interim Director-General should be appointed as soon as possible, a transparent framework for joint ventures with the Enterprise must be developed and all options to mobilize the necessary funds and technical expertize should be explored.

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.

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.

In their article ‘Beyond Tehran and Nairobi’, Gábor Kajtár and Gergő Balázs examine whether attacks against embassies can qualify as ‘armed attacks’ and thus serve as a basis for the invocation of self-defence. Based on a survey of relevant state practice and opinio juris, and building on an impressive database encompassing more than 730 incidents, the authors conclude that this question must, in all likelihood, be answered in the negative. This Reply raises the question whether the analysis and the material unearthed ultimately corroborate the conclusion which the authors distil therefrom. Upon closer scrutiny, it is suggested that there may be other, more compelling, inferences to be drawn from the material explored than the one hinted at by Kajtár and Balázs.

Protest at sea has been on the rise and this trend has now also manifested itself within the context of deep sea mining. In May 2021, Greenpeace activists approached the Normand Energy, a ship chartered by Belgian deep sea mining contractor Global Sea Mineral Resources (GSR), and interfered with its operations by painting slogans on the hull of the vessel and attaching banners to the umbilical cord of GSR’s prototype nodule collector. On the basis of applicable international principles and provisions, such actions can be considered unlawful, but adequate enforcement and effective remedies are lacking.

Taking into account the status of the Area and its mineral resources as the common heritage of mankind, transparency in the governance of the deep seabed should be regarded as a priority. Indeed, since everyone can essentially be considered an interested party, the general public should be provided with sufficient information on the activities conducted in the Area and the entities involved. However, despite the efforts being undertaken to promote access to relevant data and information, several issues remain unaddressed. Public information on corporate structures and partnerships of applicants and contractors, underlying agreements with sponsoring states, ISA contracts and annual reports – enabling stakeholders to scrutinize deep sea mining operations in the Area – is relatively scarce, facilitating creative solutions to circumvent the applicable rules. While identifying the various legal issues concerning transparency in the field of deep sea mining, this article argues that enhanced disclosure of environmental data and information alone does not suffice, and encourages the International Seabed Authority to step up its efforts in order to eradicate murky practices in the deep sea mining industry.

Public interest litigation over erga omnes breaches is commonly associated with abuses that are widespread or systematic, such as cases of genocide or crimes against humanity. By contrast, the prospect of such litigation over more isolated breaches causing harm to specific individuals is mostly ignored. Imagine, however, inter-State proceedings over (proven or alleged) human rights abuses in highly politicized and mediatized cases involving figures such as Julian Assange or Jamal Khashoggi. An alluring prospect to some; lex horrenda for others? The present paper tackles two questions that arise in this context. First, are such proceedings subject to the same admissibility requirements as applicable to the exercise of diplomatic protection (as the ILC has suggested in the past)? Second, is or should public interest litigation be limited to serious and widespread breaches, to the exclusion of more “isolated” ones? With regard to the first question, it is argued that the duty to exhaust local remedies applies mutatis mutandis to public interest litigation, but that the nationality requirement does not. As to the second question, the analysis concludes that a negative answer is in order.

The United Nations Decade of Ecosystem Restoration is an opportunity for States to advance the development of substantive and qualitative international law obligations for conducting restoration activities. This will help countries move beyond the more quantitative target-driven approach that currently focuses international commitments on the percentage of degraded areas that have to be restored. In this paper we argue for two pathways for States to accelerate and pursue international obligations to undertake ecological restoration.

Based on an interdisciplinary experience addressing traditional dimensions in marine resource management in the Pacific, the socio-ecological interconnectivity between island communities, the ocean realm and the legal context concerning the management of seabed resources, this paper proposes to discuss the relevance and efficacy of the concept of “Oceanian Sovereignty” in the context of Deep Sea Mining, from the different legal, environmental, anthropological, social, political, and economic science perspectives. The policies and practices developed in the Pacific in this context could well serve as a suitable model elsewhere to reconcile competing perspectives in addition to sustaining the Human Well-being and Sustainable Livelihoods (HWSL) and the health of the Global Ocean. Well-being and Sustainable Livelihoods (HWSL) and the health of the Global Ocean.