Sep 21, 2024 | Issue 2, Print Journal, Volume 65
Shayla Birath
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Abstract
The Economic Community of West African States (“ECOWAS”) has used force within West Africa for decades. ECOWAS began its practice of using force to resolve the regional crisis in Liberia in 1990 and has continued through 2024 in addressing the coup d’état in Niger. This Note will use three case studies of ECOWAS’s use of force—Liberia (1990), Sierra Leone (1997), and The Gambia (2016)—to evaluate the legal basis for ECOWAS’s interventions and the international response. This Note argues that ECOWAS has shaped international law in jus ad bellum by establishing a legal practice of intervention by prior consent or democratic legitimacy. This Note further postulates that ECOWAS’s treaties and protocols can be interpreted under the Vienna Convention on the Law of Treaties not to conflict with the United Nations (“U.N.”) Charter, that state silence in response to ECOWAS practices constitutes acquiescence in the formation of customary international law, that consistent U.N. Security Council statements commending and supporting ECOWAS practices could estop the U.N. Security Council from denouncing similar operations in the future, and that the principle of sovereign equality requires that African regional organizations such as ECOWAS are given equal weight and power to influence international law as Western counterparts, such as the North Atlantic Treaty Organization. This Note concludes that ECOWAS has changed the understanding of jus ad bellum in international law through its use of force within the region, and that the international community should pay attention to, and discuss, African legal practices to promote a homogenous body of international law.
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Sep 21, 2024 | Issue 2, Print Journal
Moria Paz
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Abstract
This Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.
An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This framing does not start with the right-holder but instead with the question of who the duty-holder is. Specifically, I differentiate plaintiffs based on whether they can articulate their claim in a way that identifies one discrete state duty-holder.
This revised understanding helps explain why the claims of so many individuals who are between states today do not in fact lend themselves to human rights litigation. Their plight is better served in the political arena, seeking public support for negotiation. At the same time, this approach opens potential pathways for human rights litigation to buttress protections currently afforded under the 1951 Refugee Convention to individuals on the run.
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Sep 21, 2024 | Issue 2, Print Journal, Volume 65
Adi Gal
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Abstract
Since its inception, the human rights movement has concentrated on rights, whereas remedies have remained peripheral. Human rights conventions, courts, and non-governmental organizations have theorized, analyzed, and sought to internationalize rights, but remedies have been treated as an afterthought. While the human rights movement has taken a key position in international law, the possibility of a “human remedies” movement was never considered. In recent years, however, remedies and reparations have become the focus of a growing political and scholarly debate. Harm caused to civilians during armed conflicts, increasing environmental damage inflicted on vulnerable communities, and the expansion of qualified immunity doctrines preventing judicial remediation are only a few examples demonstrating different facets of the wide gap between proclaimed rights and the remedies for their violation. This Article suggests that this remedial deficit is a result of conceptual and institutional designs we, as societies, have made.
Over the past two decades, remedies have begun to claim their place in both theory and practice in international human rights law. Nevertheless, the “rights prism” remains, limiting our thinking about remedial strategies that do not speak in the “language of rights.” The right to a remedy, construed as the right to seek remedies, depends on proving wrongdoing, often through a judicial procedure. The notion that a responsibility to remediate can arise due to an injury caused by a lawful act under a no-fault regime, regardless of proving a violation of rights, remains largely unexplored in international human rights law. In stark contrast, the tort law of domestic legal systems has developed in the opposite direction by expanding states’ obligations to remediate and relaxing the adjudication process for specific types of injuries through various reparation schemes.
Framing the remedial process as contingent on the adjudication of a rights claim and its alleged violation has contributed greatly to the internalization and internationalization of rights. But when harms continue, and right-bearers are forced to internalize their costs in the absence of an adequate remedial regime, cumulative damages are obscured, and a right becomes a rather vague and loose concept. This Article reassesses the “rights prism” remedial approach and explores how a no-fault regime can narrow the right-remedy gap by balancing the victim’s right to a remedy with the state’s responsibility to remediate.
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Sep 21, 2024 | Issue 2, Print Journal, Volume 65
Eliav Lieblich
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Abstract
“Whataboutism,” as a response to allegations of wrongdoing, is everywhere in contemporary public discussion, and international law is no exception. Unsurprisingly, it has been central to Russia’s justification discourse regarding its invasion of Ukraine. Whataboutism evokes conflicting responses. On the one hand, it can be treated as a logical fallacy and frequently employed as a cheap tactic to derail public debate. On the other hand, we often feel that there might be something to such arguments and that they cannot be dismissed offhand.
This Article seeks to offer a general theory on the potential normative relevance of whataboutism in international law. Utilizing insights from the theoretical framework of informal logic, it shows that whataboutism should be addressed as a potentially valid argumentative scheme, rather than as a pure fallacy. The Article argues that since whataboutism in international law frequently invokes notions of unfairness, the question of whether whataboutism is relevant in international legal argumentation requires establishing whether there are indeed obligations of fairness between the alleger and the whataboutist objector.
Since obligations of fairness generally require the exercise of public power, the salient question concerning the relevance of whataboutism in international law is whether international actors interact under assumptions of private or public law. The Article explores both traditions in international legal theory, offers indications for the existence of such public functions in specific instances, and suggests prelimi-
nary implications of a relevant whataboutist claim in international law.
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