Pub Date : 2020-12-09DOI: 10.1163/18781527-01102017
R. Buchan, E. Crawford, Rain Liivoja
To say that this issue of the Journal has been produced under unusual circumstances would be an understatement. When we began work on the issue in March 2020, the seriousness of the ‘coronavirus disease 2019’ (‘covid-19’) outbreak was starting to become clear. Already in January, the Director-General of the World Health Organization (who) had declared the covid-19 outbreak a ‘public health emergency of international concern’ (pheic),1 that is to say, as an ‘extraordinary event’ deemed under the International Health Regulations ‘to constitute a public health risk to other States through the international spread of disease’ and ‘to potentially require a coordinated international response’.2 In March, the Director-General further declared the outbreak a ‘pandemic’.3 The so-called Finagle’s law of dynamic negatives (a somewhat lesser-known derivative of Murphy’s law) postulates that ‘anything that can go wrong, will – at the worst possible moment’. This seems to have held true with respect to the covid-19 outbreak from a global perspective. The pandemic hit during an era of increased scepticism in science, a decline of democracy and a rise of authoritarianism, a flare-up of big-power rivalry, and waning multilateralism. As a consequence, the response to covid-19 became a political plaything both
{"title":"International Law in a Time of Pandemic","authors":"R. Buchan, E. Crawford, Rain Liivoja","doi":"10.1163/18781527-01102017","DOIUrl":"https://doi.org/10.1163/18781527-01102017","url":null,"abstract":"To say that this issue of the Journal has been produced under unusual circumstances would be an understatement. When we began work on the issue in March 2020, the seriousness of the ‘coronavirus disease 2019’ (‘covid-19’) outbreak was starting to become clear. Already in January, the Director-General of the World Health Organization (who) had declared the covid-19 outbreak a ‘public health emergency of international concern’ (pheic),1 that is to say, as an ‘extraordinary event’ deemed under the International Health Regulations ‘to constitute a public health risk to other States through the international spread of disease’ and ‘to potentially require a coordinated international response’.2 In March, the Director-General further declared the outbreak a ‘pandemic’.3 The so-called Finagle’s law of dynamic negatives (a somewhat lesser-known derivative of Murphy’s law) postulates that ‘anything that can go wrong, will – at the worst possible moment’. This seems to have held true with respect to the covid-19 outbreak from a global perspective. The pandemic hit during an era of increased scepticism in science, a decline of democracy and a rise of authoritarianism, a flare-up of big-power rivalry, and waning multilateralism. As a consequence, the response to covid-19 became a political plaything both","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45132509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-19DOI: 10.1163/18781527-bja10023
Cristina Teleki
Detention operations have been a salient feature of the military conflict in Eastern Ukraine. Often referred to as exchanges or swaps of detainees, the operations leading to the simultaneous release and transfer of detainees (srtd) offer fertile terrain for inquiring about the applicability of international humanitarian law (ihl) and international human rights law (ihrl). This article attempts to fill a gap in the literature on detention operations outside the war on terror framework. It offers a chronological review of the detention operations that have taken place in Ukraine since the beginning of the military conflict. This paper then follows a classical two-step analysis first of ihl, ihrl and domestic law provisions applicable to srtds and, second, of the impact of these provisions on the human rights protection of the persons involved. The preliminary conclusions of this analysis indicate that, despite the praise of the international community for the srtds in Ukraine, human rights violations have resulted from srtds. More specifically, the legal framework under which srtds take place appears to be a ‘cocktail’ of ihl and ihrl provisions. Certainly, srtds have attracted international media coverage and support for Ukraine. At the same time, however, the ‘hidden cost’ of these operations begins to be understood as well because the legal status of many participants in the srtds appears to worsen, access to justice appears to be hampered and the independence of justice appears to be threatened as a result of these operations.
{"title":"Detainee Operations in Ukraine","authors":"Cristina Teleki","doi":"10.1163/18781527-bja10023","DOIUrl":"https://doi.org/10.1163/18781527-bja10023","url":null,"abstract":"\u0000Detention operations have been a salient feature of the military conflict in Eastern Ukraine. Often referred to as exchanges or swaps of detainees, the operations leading to the simultaneous release and transfer of detainees (srtd) offer fertile terrain for inquiring about the applicability of international humanitarian law (ihl) and international human rights law (ihrl). This article attempts to fill a gap in the literature on detention operations outside the war on terror framework. It offers a chronological review of the detention operations that have taken place in Ukraine since the beginning of the military conflict. This paper then follows a classical two-step analysis first of ihl, ihrl and domestic law provisions applicable to srtds and, second, of the impact of these provisions on the human rights protection of the persons involved. The preliminary conclusions of this analysis indicate that, despite the praise of the international community for the srtds in Ukraine, human rights violations have resulted from srtds. More specifically, the legal framework under which srtds take place appears to be a ‘cocktail’ of ihl and ihrl provisions. Certainly, srtds have attracted international media coverage and support for Ukraine. At the same time, however, the ‘hidden cost’ of these operations begins to be understood as well because the legal status of many participants in the srtds appears to worsen, access to justice appears to be hampered and the independence of justice appears to be threatened as a result of these operations.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"1 1","pages":"1-30"},"PeriodicalIF":0.9,"publicationDate":"2020-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46882277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-18DOI: 10.1163/18781527-bja10018
Pouria Askary, Farzad Fallah
From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.
{"title":"The Right to International Solidarity and Humanitarian Assistance in the Era of covid-19 Pandemic","authors":"Pouria Askary, Farzad Fallah","doi":"10.1163/18781527-bja10018","DOIUrl":"https://doi.org/10.1163/18781527-bja10018","url":null,"abstract":"\u0000From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43474831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-20DOI: 10.1163/18781527-bja10014
M. Paparinskis
This paper considers the role that the law of international responsibility, both State responsibility and responsibility of international organizations, plays in claims and disputes about covid-19. It proceeds by examining in turn the rubrics of the internationally wrongful act, content of responsibility, and implementation of responsibility. On most points, blackletter law is perfectly capable of answering the questions raised by claims related to covid-19. But evolutionary potential inherent in the normal international legal process should also be recognised, whether it manifests itself by further strengthening current rules, elaborating vague rules by application, filling gaps in current law by generating new practice or even, exceptionally, revisiting rules currently in force.
{"title":"covid-19 Claims and the Law of International Responsibility","authors":"M. Paparinskis","doi":"10.1163/18781527-bja10014","DOIUrl":"https://doi.org/10.1163/18781527-bja10014","url":null,"abstract":"\u0000This paper considers the role that the law of international responsibility, both State responsibility and responsibility of international organizations, plays in claims and disputes about covid-19. It proceeds by examining in turn the rubrics of the internationally wrongful act, content of responsibility, and implementation of responsibility. On most points, blackletter law is perfectly capable of answering the questions raised by claims related to covid-19. But evolutionary potential inherent in the normal international legal process should also be recognised, whether it manifests itself by further strengthening current rules, elaborating vague rules by application, filling gaps in current law by generating new practice or even, exceptionally, revisiting rules currently in force.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45890013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-05DOI: 10.1163/18781527-bja10022
A. Silvestri
Contemporary trends of warfare have witnessed a so-called ‘civilian footprint’ in support of military operations while battlefields have increasingly shifted towards urban areas. International humanitarian law established a framework through which civilians are protected from direct attack ‘unless and for such time as they take a direct part in hostilities’. Three key areas have traditionally been associated with the analysis of direct participation in hostilities (‘dph’): civilian legal status, what behaviour amounts to dph, and what modalities govern this loss of protection. This article will focus on the latter and attempt to create a feasible and practical framework capable of harnessing the temporal scope of dph and limit the so-called ‘revolving door phenomenon’. The framework developed in this article will account for criteria that could and should aid decision-making on the battlefield, most notably causal associations between individuals and dph acts and the physical or non-physical nature of dph acts’ deployments.
{"title":"The ‘Revolving Door’ of Direct Participation in Hostilities","authors":"A. Silvestri","doi":"10.1163/18781527-bja10022","DOIUrl":"https://doi.org/10.1163/18781527-bja10022","url":null,"abstract":"\u0000Contemporary trends of warfare have witnessed a so-called ‘civilian footprint’ in support of military operations while battlefields have increasingly shifted towards urban areas. International humanitarian law established a framework through which civilians are protected from direct attack ‘unless and for such time as they take a direct part in hostilities’. Three key areas have traditionally been associated with the analysis of direct participation in hostilities (‘dph’): civilian legal status, what behaviour amounts to dph, and what modalities govern this loss of protection. This article will focus on the latter and attempt to create a feasible and practical framework capable of harnessing the temporal scope of dph and limit the so-called ‘revolving door phenomenon’. The framework developed in this article will account for criteria that could and should aid decision-making on the battlefield, most notably causal associations between individuals and dph acts and the physical or non-physical nature of dph acts’ deployments.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"1 1","pages":"1-47"},"PeriodicalIF":0.9,"publicationDate":"2020-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42237587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-15DOI: 10.1163/18781527-01102005
Kirsten J. Fisher
In November 2019, the icc’s Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation based on a previous decision that the Court may exercise jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. While the crime of deportation occurred in Myanmar, which is not a State party to the icc and therefore not within the jurisdiction of the Court without unsc referral, the deportation ended in Bangladesh, which is a State party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift drastically in regards to the possible jurisdictional reach of the icc. This paper explores how this Pre-Trial Chamber decision, reasonably read as extending the Court’s geographic jurisdiction beyond what was intended by the drafters of the Rome Statute, could have negative implications, particularly how this extension could further threaten some of the world’s most vulnerable.
{"title":"The Problem with the Crime of Forced Migration as a Loophole to icc Jurisdiction","authors":"Kirsten J. Fisher","doi":"10.1163/18781527-01102005","DOIUrl":"https://doi.org/10.1163/18781527-01102005","url":null,"abstract":"\u0000In November 2019, the icc’s Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation based on a previous decision that the Court may exercise jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. While the crime of deportation occurred in Myanmar, which is not a State party to the icc and therefore not within the jurisdiction of the Court without unsc referral, the deportation ended in Bangladesh, which is a State party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift drastically in regards to the possible jurisdictional reach of the icc. This paper explores how this Pre-Trial Chamber decision, reasonably read as extending the Court’s geographic jurisdiction beyond what was intended by the drafters of the Rome Statute, could have negative implications, particularly how this extension could further threaten some of the world’s most vulnerable.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"-1 1","pages":"1-25"},"PeriodicalIF":0.9,"publicationDate":"2020-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01102005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48166925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-25DOI: 10.1163/18781527-bja10004
S. Joseph
States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.
{"title":"International Human Rights Law and the Response to the covid-19 Pandemic","authors":"S. Joseph","doi":"10.1163/18781527-bja10004","DOIUrl":"https://doi.org/10.1163/18781527-bja10004","url":null,"abstract":"\u0000States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-bja10004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42310237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-13DOI: 10.1163/18781527-01102004
Hin-Yan Liu, K. Lauta, M. Maas
This paper explores the ongoing Covid-19 pandemic through the framework of existential risks – a class of extreme risks that threaten the entire future of humanity. In doing so, we tease out three lessons: (1) possible reasons underlying the limits and shortfalls of international law, international institutions and other actors which Covid-19 has revealed, and what they reveal about the resilience or fragility of institutional frameworks in the face of existential risks; (2) using Covid-19 to test and refine our prior ‘Boring Apocalypses’ model for understanding the interplay of hazards, vulnerabilities and exposures in facilitating a particular disaster, or magnifying its effects; and (3) to extrapolate some possible futures for existential risk scholarship and governance.
{"title":"Apocalypse Now?","authors":"Hin-Yan Liu, K. Lauta, M. Maas","doi":"10.1163/18781527-01102004","DOIUrl":"https://doi.org/10.1163/18781527-01102004","url":null,"abstract":"\u0000This paper explores the ongoing Covid-19 pandemic through the framework of existential risks – a class of extreme risks that threaten the entire future of humanity. In doing so, we tease out three lessons: (1) possible reasons underlying the limits and shortfalls of international law, international institutions and other actors which Covid-19 has revealed, and what they reveal about the resilience or fragility of institutional frameworks in the face of existential risks; (2) using Covid-19 to test and refine our prior ‘Boring Apocalypses’ model for understanding the interplay of hazards, vulnerabilities and exposures in facilitating a particular disaster, or magnifying its effects; and (3) to extrapolate some possible futures for existential risk scholarship and governance.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01102004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47120931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-27DOI: 10.1163/18781527-01102003
G. Burci
The pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) has raised unprecedented challenges for most international legal and policy regimes and we cannot yet foresee its long-term consequences. The legal and institutional regime to prevent and control the international spread of disease, based on the World Health Organization and the International Health Regulations (ihr 2005) has also been severely tested. Critics have challenged who’s apparent politicization and the ineffectiveness of the ihr 2005 as a tool to coordinate the international response to covid-19. The ihr 2005 have codified the operational model of the who Secretariat at the time of their revision, but the assumptions about who’s epistemic authority and the willingness of states parties to conform to who’s lead have proven overoptimistic. Still, addressing some of the major weaknesses of the ihr 2005 could give them renewed momentum and nudge states towards a more coordinated and effective response to epidemics.
{"title":"The Legal Response to Pandemics","authors":"G. Burci","doi":"10.1163/18781527-01102003","DOIUrl":"https://doi.org/10.1163/18781527-01102003","url":null,"abstract":"\u0000The pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) has raised unprecedented challenges for most international legal and policy regimes and we cannot yet foresee its long-term consequences. The legal and institutional regime to prevent and control the international spread of disease, based on the World Health Organization and the International Health Regulations (ihr 2005) has also been severely tested. Critics have challenged who’s apparent politicization and the ineffectiveness of the ihr 2005 as a tool to coordinate the international response to covid-19. The ihr 2005 have codified the operational model of the who Secretariat at the time of their revision, but the assumptions about who’s epistemic authority and the willingness of states parties to conform to who’s lead have proven overoptimistic. Still, addressing some of the major weaknesses of the ihr 2005 could give them renewed momentum and nudge states towards a more coordinated and effective response to epidemics.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2020-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18781527-01102003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42710113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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