Groningen Journal of International Law

International Law Under Construction


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The ECtHR on Nagorno-Karabakh: Current Approaches and Future Prospects

Gayathree Devi KT

In recent years, the European Court of Human Rights (ECtHR) has seen an influx in claims concerning human rights violations in contested territories. Nagorno-Karabakh is one such interesting territory, because it involves competing territorial claims not only from States – Azerbaijan (the internationally recognized territorial State) and Armenia (the occupying force) – but also from a non-State actor, the Republic of Artsakh. Although Artsakh lacks international recognition, it has been exercising de facto control over Nagorno-Karabakh to the exclusion of Azerbaijan since at least 1991. Its role in the human rights situation in Nagorno-Karabakh matters, because several human rights violations in the region are being committed by this de facto regime (DFR), whether with or without Armenia’s support. Against this backdrop, this blogpost analyses how the ECtHR has been establishing jurisdiction and responsibility for claims arising out of the Nagorno Karabakh conflict so far. It also considers the implications of the court’s 2021 decision in Georgia v Russia (II) for claims arising out of the recent resumption of hostilities in Nagorno-Karabakh.

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The Potential of Common Article 1 to the Geneva Conventions in the Nagorno-Karabakh Conflict (and Beyond)

Kilian Roithmaier

Introduction

Since the end of the Nagorno-Karabakh War in 1994, Armenia and Azerbaijan have remained in dispute over the Nagorno-Karabakh region that is internationally considered to be part of Azerbaijan and occupied by Armenia. The conflict has triggered occasional fighting in the past, but the most recent and intense round of hostilities erupted after Azerbaijan commenced a military offensive on 27 September 2020. On 9 November 2020, Armenia and Azerbaijan concluded a ceasefire agreement brokered by Russia. Whether the truce, despite reported violations, will hold and resolve the decades-old dispute, remains yet to be seen.

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Locating Human Rights in the Heart of the New ‘International Pandemic Law’: A Reply to Steve Charnovitz

Dr I-Ju Chen

The COVID pandemic has caused significant and evolving challenges to every nation in the world since it occurred in December 2019. It has resulted in, for example, export prohibitions and restrictions in international trade, cross-border sharing of scientific data for global health efforts, and has affected human rights. These unprecedented disruptions have required countries to navigate solutions for the pandemic, and further revealed gaps and challenges in international law. In the Opinio Juris Symposium entitled ‘COVID-19 and International Law’ held in March 2020, Professor Philippe Sands, a leading international law scholar, pointed out that ‘the birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law’. Moreover, the 2005 International Health Regulations have been criticised for their ambiguity in the COVID pandemic, according to Armin von Bogdandy and Pedro A Villarreal’s research. The function of this governing regulation has generated many discussions on how to reform international health law. The COVID pandemic is thus a matter for international law, and rule-of-law responses for the pandemic under international law are necessary.

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The ‘Mental Disorder’ Defence in Prosecutor v Ongwen

Marina Fortuna

Introduction

On 4 February 2021 the Trial Chamber IX of the International Criminal Court (ICC) issued its judgment in the Prosecutor v. Dominic Ongwen. The case concerns the events which occurred in Northern Uganda between 1 July 2002 and 31 December 2005 for which Ongwen was charged with 70 counts of war crimes and crimes against humanity, 66 of which he was found guilty for.

During the proceedings, the Defence Counsel raised the defence of mental disease (or defect), provided for in Article 31(1)(a) of the ICC Statute as a ground for excluding Ongwen’s responsibility. The judgment’s course of proceedings and the Trial Chamber’s reasoning addresses important procedural and evidentiary issues concerning the ICC’s mental disease defence. This contribution discusses two of them: the procedural issues concerning the burden and standard of proof and the evidentiary issues concerning the expert reports and psychological/psychiatric examination.

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Biden-Harris Back to Paris – A Free Pass From the Past? An International Legal Perspective on the Reparations Still Due

Mohit Khubchandani

Introduction

On 20 January 2021, Joe Biden took office as the 46th President of the United States of America (US), alongside Kamala Harris, the first female Vice-President. Among his first acts as President, Biden signed an executive order to rejoin the Paris Agreement on Climate Change, 2015 (PA). While this a welcome decision, this article argues that the US still owes reparations to the world for the transboundary environmental harms committed. There is no retrospective escape from the internationally wrongful acts committed by the past administration. The Trump Administration had announced its decision to leave the agreement in June 2017 but could legally exit it only in November 2020. Therefore, every climate adverse policy enacted in the interim period is something for which the nation owes as an apology to the world; a legal one, too. This is also an opportunity for the world to see, tactically and politically, how much this new administration is willing to take responsibility.

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Genocide Risk in Nagorno-Karabakh

Dr Melanie O’Brien and Dr Suren Manukyan

Atrocity Risk Factors

Multiple risk factors lead to the commission of atrocity crimes, including genocide. Many of these risk factors can be observed in the Nagorno-Karabakh situation with regards to the Armenian population of that entity. This post will draw on several crucial sources of genocide risk factors: the United Nations Framework Analysis for Atrocity Crimes, and the work of several genocide scholars such as Barbara Harff. While the UN Framework lists 14 risk factors of atrocity crimes, scholars over the years have presented anywhere from four to seven risk factors for genocide.

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Dalit Lives Matter: Caste Discrimination and International Law

Dr. Srinivas Burra

Cambridge University academic Priyamvada Gopal’s tweet, ‘White lives don’t matter. As white lives,’ on 22 June 2020 became controversial. Explaining that ‘Whiteness does not qualify someone to have their life matter; the life matters but not the whiteness’, she made a comparison between her Brahmin background and whiteness. In her view, one could not say Brahmin Lives Matter in the same way that Dalit Lives Matter.

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The Right to Academic Freedom in Latin America: A commentary on the report of the UNSR on freedom of opinion and expression

Salvador Herencia-Carrasco and Catalina Arango Patiño

‘Education is the vaccine against violence and ignorance’. These words of Argentinean cartoonist Quino, immortalized by Mafalda, reflect the importance of education for the progress of our societies. Despite the fact that everyone seems to agree on their relevance, the almost secondary place that academic freedom has in international human rights law is striking.

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Recognizing Economic and Social rights in the context of COVID-19 Pandemic: An Expensive Wakeup call?

S. M. Morsalin Hider, Muhammad Rezaur Rahman and Arpeeta Shams Mizan

The UN Secretary-General Antonio Guterres has addressed the Covid-19 pandemic as the most challenging crisis since the Second World War. Most States, including those with advanced economies and medical facilities, have drastically failed to tackle the pandemic. Confronting Covid-19 is requiring not only national emergency funds but also private assistance. Continue reading


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The Enrica Lexie Incident: The Jurisdiction Clause Marooned

Pranay Lekhi

On 2 July 2020, an Arbitral Tribunal under Annex VII of the United Nations Convention on the Law of Seas (UNCLOS) published a redacted dispositf in “The Enrica Lexie Incident” between India and Italy. Since then the final Award of 21 May 2020 has become publicly available.The dispute pertained to the killing of two Indian fishermen on board an Indian vessel named the “St. Antony” by two Italian marines aboard an oil tanker flying the Italian flag called the “Enrica Lexie” (Award, paras 77-117). The incident led to India exercising criminal jurisdiction over the Italian marines, which was disputed by Italy inter alia on the grounds that India acted inconsistently with the UNCLOS as the marines had immunity by virtue of being “Italian State officials exercising official functions” (Award, para 732). Continue reading