Kushtrim Istrefi provides his analysis of the recent decision by the European Court of Human Rights (ECtHR) in Kovačević v Bosnia and Herzegovina. The case challenged the State’s power-sharing constitutional arrangements which were established in the 1995 Dayton Peace Agreement. The court found that the combination of territorial and ethnic requirements for participation in elections to the House of Peoples and Presidency, set in the arrangements, amounted to a breach of Article 1 of Protocol No. 12 ECHR. Following the outline of the case, Istrefi goes on to examine the reasoning behind these arrangements. Further, the author explores the enforcement difficulties and possible implications this judgment may have on power-sharing arrangements and future peace agreements in Europe.
In his post titled ‘A Judgment Leaking from the European Court: The Case of Kovačević v Bosnia and Herzegovina,’ Igor Popović discusses the apparent leak of the judgment in the aforementioned case. The author asserts the judgment was clearly leaked by the court. Further, he notes two significant consequences of the leak. The first regards the imposition of sanctions on the responsible individual and the second relates to the impact the leak may have on the final outcome of the case if referred to the grand chamber. He concludes that:
‘The judgment in Kovačević case is truly important for Bosnia and Herzegovina. It requires changes at the core of the state’s apparatus – its electoral and political system. But what precedes the merits is the fact that the judgment leaked. It is clear that there was a breach of the ECtHR’s Rules. There is no doubt that this is an unprecedented serious incident, and the Court should investigate it. The investigation might reveal different things, including the court’s partiality, which could be essential for the final outcome of the case.’
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Omar Hammady provides an analysis of the current crisis in Niger and the legality of the ECOWAS Planned Military Intervention. He focuses on claims of abstract treaty-based consent, ad hoc consent, and elaborates on the consequences of the aforementioned threat to use force. Hammady concludes that the proposed options to use force against Niger without prior authorization from the Security Council would be illegal:
‘It follows that Niger’s coup which can and should be overturned, should be addressed by peaceful means. Growing demands to prevent yet another war in the Sahel region are being voiced by the region’s politicians, intellectuals and activists, but also by international experts. A military intervention risks disastrous consequences for the Sahel States and population, with dramatic humanitarian consequences and a foreseeable spill-over effect for Europe. This can only benefit terrorist groups and criminal networks.’
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In their post titled ‘Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III,’ Joshua Paine and Elizabeth Sheargold discuss the ‘Draft Provisions on Procedural and Cross-Cutting Issues,’ which will be discussed by UNCITRAL Working Group III in its next session in October 2023. The authors focus on Draft Provision 12 which contains a standard ‘right to regulate’ clause, often found in International Investment Agreements (IIA), along with two novel paragraphs aimed at responding to concerns about regulatory chill. Paine and Sheargold assert that even if Draft Provision 12 is not widely adopted in its current form, it sparked an important debate for wider ongoing discussions of IIA reform. Additionally, the authors note Draft Provision 12 may serve an important political purpose by showing that the Working Group III process is addressing the concerns of those States who believe that the Working Group’s mandate should extend beyond strictly procedural issues.
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Jack Sproson and Tsvetelina van Benthem discuss three legal questions arising from reported practices of enforced disappearance in Russian-occupied Ukrainian territories. The authors examine the various definitions of enforced disappearance as well as aspects of it such as the length of the disappearance and the denial of the deprivation of liberty or the refusal to provide information on the whereabouts or fate of the disappeared individual. Sproson and van Benthem conclude that:
‘As the Russian occupation of Ukraine rolls on, testimonies increasingly demonstrate a propensity to engage in practices which may be qualified as enforced disappearance. If proven, such practices will amount to serious and gross violations of the human rights of those disappeared and their families. Today, as we recognise the continuing disturbing trend of enforced disappearance around the world, it is more important than ever to pursue all available accountability avenues to ensure justice for the disappeared and their close ones, and to signal the international community’s commitment to ending this abhorrent practice.’
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Written byTal Gross
customary law of armed conflict symposium
In their post titled ‘Identifying Customary LOAC in Practice,’ Roni Katzir and Hadar David put forth three primary observations that pertain to crucial methodological aspects related to the identification of Customary International Law (CIL) that are often encountered when practicing the Law of Armed Conflict (LOAC). In the realm of theory and practice, the authors present the factors that should be considered in the context of the two-element approach. Subsequently, the authors discuss the application of existing CIL to new domains of warfare and the interpretation prospects of CIL.
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In her post titled ‘The Legal Fiction of the Two-Element Approach: The Role of International Organizations in Customary IHL Identification,’ Magda Pacholska provides a brief conceptual backdrop of CIL methodology. Pacholska critically evaluates the applicability of the two-element approach, comprised of State practice and opinio juris, in the context of customary Law of Armed Conflict (LOAC). The author examines the 2018 International Law Commission’s Conclusions on the Identification of Customary International Law and the Commission’s position on custom-making powers of actors other than States. Pacholska proceeds to analyze the disconnect between the theory and practice of customary LOAC identification, and the frequently overlooked role international organizations play in this regard, mainly international criminal courts and tribunals.
Read the full analysis here.
Jeffrey Kovar explores the United States’ approach to identifying CIL in the context of LOAC. The author offers three examples of situations the United States has taken steps to explain its views on customary LOAC and promote the crystallization of those rules. These instances include the customary international law status of Article 75 of the First Additional Protocol (AP I) to the Geneva Conventions, the jus ad bellum right of States to use force in self-defense against non-State actors on the territory of another State, and the DoD Law of War Manual.
Read his full analysis here.