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Raghav Kohli

With growing international recognition of the widespread scale and sobering consequences of human trafficking, the International Criminal Court (ICC) is the most likely forum for its prosecution in the near future. However, the debate on whether it constitutes a crime within the jurisdiction of the Court remains unresolved. While significant scholarship has been devoted to this issue, it has largely neglected two critical investigative domains. First, the Rome Statute's travaux préparatoires vis-à-vis enslavement, and second, the potential to prosecute trafficking otherwise than under the crime against humanity of enslavement. In this vacuum, this article argues that a strict textualist interpretation of the crime against humanity of enslavement under Article 7(2)(c) of the Statute defeats the Court's goal of ending impunity, by excluding modern forms of slavery from its jurisdiction. It then proposes an innovative argument sourced from the Statute's travaux préparatoires for adopting a broader understanding of enslavement, which is more faithful to the drafter's intentions under the interpretative scheme envisioned in the Vienna Convention on the Law of Treaties. Such a qualified textualist interpretation of the Statute allows for the prosecution of the most serious crimes of international concern, such as trafficking, and preserves the credibility of the ICC as the normative and physical edifice of accountability. In the alternative, it is argued that human trafficking may be prosecuted as an ‘other inhumane act’ under Article 7(1)(k) of the Statute. Thus, the conclusion suggests that the ICC is indeed competent, on more than one ground, to exercise its jurisdiction over the crime of human trafficking.

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Edited by Eirini Kikarea and Maayan Menashe

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Noam Schimmel

This paper asks what are the potential responsibilities to respect, protect, and fulfill international human rights law (IHRL) of a particular class of non-State actors: non-governmental organizations (NGOs). The paper focuses on those NGOs pursuing development in a post-genocide/post-mass-atrocity transitional justice context acting simultaneously in partnership with State governments, as proxies, and providing essential public goods as part of their development remit. It uses post-genocide Rwanda as an example to illustrate how respect and fulfillment of the IHRL pertaining to reparative justice are hindered by failing to hold NGOs responsible for IHRL. This paper defines reparative justice in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of IHRL and Serious Violations of International Humanitarian Law. These are centered upon five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. I argue that many development NGOs in Rwanda, by not adequately incorporating reparative justice into their development and transitional justice remit and not acknowledging and responding to the distinctive rights and vulnerabilities of genocide survivors, are neglecting IHRL on the right to reparative justice. They have the capacity to prioritize reparative justice in their programming for genocide survivors and in their negotiations with the Rwandan government of how development aid will be disbursed in Rwanda, who will be its recipients, and the prioritization of those facing disadvantage so as not to further marginalize them. I argue, furthermore, that current soft law demands that NGOs should never enter into a contract for provision of development aid with a sovereign that knowingly entails – whether by commission or omission – a violation of IHRL. Though States are ultimately held legally responsible for the acts of NGOs this should not prejudice NGOs being held socially and morally responsible in some capacity and some degree, simultaneously. There is potential for new soft-law moral and social standards regulating NGO behavior to become legal obligations, if they eventually achieve widespread status and practice as customary international law.

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Maria Xiouri

This article examines the Partial Award of 30 June 2016 in the matter of an arbitration between Croatia and Slovenia, which presents particular interest with regard to the topic of termination of a treaty – which in this case was an arbitration agreement – on the grounds of its material breach by a party. It focuses on the issues of: (1) the jurisdiction of the Tribunal to examine the legality of the purported termination of the arbitration agreement; (2) the possibility of termination of an arbitration agreement because of its material breach; (3) the definition of material breach, examining the notion of repudiation of a treaty and the notion of violation of a provision essential to the accomplishment of the object and purpose of the treaty, as well as the question of whether the material character of breach depends on the gravity of the latter; and (4) procedural issues with regard to the termination of a treaty on the grounds of its material breach. The article argues that, in this Partial Award, the Tribunal made some important clarifications with regard to the issue of termination of a treaty on the grounds of its material breach. Moreover, the Tribunal arguably emphasised treaty stability, by adopting a strict interpretation of the definition of material breach according to Article 60 (3)(b) VCLT, which, however, moves away from the letter of this provision to a certain extent.

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Lucas Lixinski

This article discusses a novel mechanism by the Inter-American Court of Human Rights (IACtHR) for promoting systemic change in domestic jurisdictions: joint supervision of compliance with multiple judgments issued against the same State. The article puts this mechanism in comparison to the European Court of Human Rights’ pilot judgments procedure, a more established mechanism with a longer history. In assessing these mechanisms in relation to human rights courts’ legitimacy and impact, the article argues that the IACtHR's mechanism has higher legitimacy costs in relation to the State, but lower vis-à-vis the international human rights community, even if ultimately both mechanisms are first and foremost about addressing court backlogs, and only incidentally about promoting systemic change.

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Louise Mallinder

In many post-conflict societies, political actors battle to ensure the dominancy of their preferred narratives regarding the causes of and responsibilities for past violence. They wage these conflicts about the conflict to instrumentalise narratives of the past to serve their contemporary political aims, but in doing so, they contribute to the endurance of societal divisions which can have destructive effects on the promotion of reconciliation and political stability. Metaconflicts can be particularly heated with respect to the design and implementation of measures to deliver victims’ rights to truth, justice and reparations, as it is through these processes that competing and complex communal narratives of the past are exposed and challenged. This article interrogates how metaconflicts shape political actors’ engagement with or resistance to international legal obligations to investigate and prosecute past violations. The approaches of Northern Ireland's Unionist political parties and Unionist-aligned organisations to the United Kingdom's obligations under the European Convention of Human Rights are used as a case study. Through theoretically informed qualitative analysis of publicly available submissions made by these groups to an official consultation and parliamentary inquiries taking place during 2018, this article identifies four strategies used by Unionists to resist approaches to dealing with the past that they view as contrary to their interests. On this basis, the article argues that these actors understand law as a means to construct and provide official recognition for communally resonant moral and social categories and norms, and that, as such, legal principles such as the equality of the law, non-discrimination and independence within the criminal justice process are viewed as secondary to political concerns. It concludes that reducing the metaconflict's destructive effects requires all parties to recognise the need for political generosity and compromise and to develop more substantive engagement with the principles of universality and equality underpinning international human rights law.

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Brianne McGonigle Leyh and Julie Fraser

The traditional aim of reparations is to place the victim back in the position they would have been in had the harm not occurred. Academics and practitioners have criticised this traditional approach to reparations for serious crimes and human rights violations as failing to address socio-economic disparities and unequal power structures. The recent transformative reparations theories grew out of the belief that it is ineffectual to place marginalised victims back in positions of marginalisation following serious harm. The desire to transform the lives of victims as well as the power structures that sustain unequal relationships is compelling. As a result, this idea has been influential within academic and policy-making circles, and endorsed by the United Nations, the International Criminal Court, and regional and domestic jurisdictions. Despite this, it remains unclear what ‘transformation’ means in theory and in practice. The purpose of this article is to critically examine transformative reparations and explore whether the notion is in fact changing the game or rather more of the same. It questions the utility of the label ‘transformative’ and its suitability in specific contexts. It concludes that outside the international(ised) criminal context, and especially in the national and local context, there may be greater scope for reparations with transformative potential, but only when victims and affected communities play a central role in the decision-making, and when linked with other non-temporary, structural changes. Even under these circumstances, reparation authorities should be cautious of raising false expectations that reparations will be transformative.

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Malebakeng Agnes Forere

In South Africa, patents compulsory licences can be issued under the Patents Act or Competition Act although the latter is not explicit. Whereas there has not been a single compulsory licence issued through the Patents Act, there is however a growing interest to obtain compulsory licences of drugs using the competition law regime. Focusing specifically on the standard of compensation, the objectives of this paper are two-fold: first, it seeks to determine why there is a growing interest in resorting to the competition route as opposed to the Patents Act. Secondly, the paper aims to determine the extent to which the South African compulsory licensing regime complies with the TRIPs Agreement. It is found herein that the standard of compensation under patents law is higher than that found in the competition law cases. Further, it is found however that compulsory licences issued through the competition law do not take into account the procedural safeguards that are found in the Patents Act as well as the TRIPs Agreement; as such, they undoubtedly infringe the rights of the patentees. The article recommends that the South African Competition Act should be reviewed with a view to aligning its compulsory licensing scheme with that of the Patents Act and the TRIPs Agreement, thereby establishing a nexus between competition law and patents law. This paper comes at an opportune moment in which South Africa and China are urging other WTO members to share their national experiences on the use of competition law to ensure access to health, and it shall therefore shed some light on how South Africa does it and the obstacles therein.