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  • Archive for November, 2016

    Understanding Security Council Authority

    By Gaiane Nuridzhanian, on 30 November 2016

    Event summary

    On 22 November 2016 Devika Hovell, Associate Professor in Public International Law at LSE, spoke at UCL. She discussed the authority of the UN Security Council (UNSC), and its nature. At the outset, the speaker observed that there was little interest among international lawyers, and even less so among the international organisation lawyers, in adopting theoretical approach to international law. Instead, the law of international organisations was developed by practitioners, often in a patchy manner and in response to specific practical challenges. In this process of development, it were the positivism and realism that guided and controlled the development of this legal discipline. In this regard, the speaker referred to Dworkin’s advice to lawyers and philosophers to improve ‘the jurisprudential discussion of international law’.

    In pursuing her goal to develop a concept of the UNSC’s authority, Devika Hovell challenged two orthodoxies. The first orthodoxy, from the domain of international law, reflects the idea of State consent as a source of the UNSC authority. According to this positivist approach, the authority emanated from Articles 25 and 103 of the UN Charter that imposed on the States an obligation to comply with the UNSC decisions and established the primacy of the States’ obligations under the UN Charter. In the opinion of the speaker, the State consent based on a singular act of the State’s consent to the UN Charter, was not sufficient of a basis for the UNSC authority. The justification of such authority had to be more complex.

    The second conventional wisdom that Dr Hovell sought to deconstruct concerned the jurisprudential domain. Under this orthodoxy, individual autonomy constitutes the ultimate source of the authority of international law, and thus it is the objective of safeguarding the individual autonomy that endowed international law with authority and State autonomy with value. However, in her opinion, this approach does not fully reflect the place of the State and the State interests in international law. It also does not take into account that international law commands authority over States, and not individuals. The individual autonomy-based approach can also be said to be unsuitable for explaining the authority of the UNSC since the latter is primarily focused on the collective responsibility in the face of common threats rather than on promotion of individual interests.

    The authority of international law rests primarily on the belief and conviction of those to whom its rules are directed, that they have a role to play in the rule of law itself. Dr Hovell noted the view expressed by Sir Michael Wood in the course of the Iraq Inquiry. Addressing the comment that the absence of a court meant essentially that states could interpret Security Council resolutions as they wished, Sir Michael Wood replied that; “[T]he absence of a court, I think, is a reason for being more scrupulous […].

    It is one thing for a lawyer to say, “Well, there is an argument here. Have a go. A court, a judge, will decide in the end”. It is quite different in the international system, where that’s usually not the case. You have a duty to the law, a duty to the system. You are setting precedents by the very fact of saying things and doing things.”

    Dr Hovell proposed a grundnorm for the authority of the UNSC that would be based neither on State consent nor on individual authority, but will be grounded in the idea of ‘shared responsibility’. In this regard it is necessary to consider two aspects of the UN Security Council authority: ‘representativeness’ and ‘purposiveness’.

    UN Security Council has often been criticised as being unrepresentative. Legitimising its authority would entail the idea that this authority is ‘shared’ with others. Although most theoretical accounts focus on authority held by a single actor, in contemporary international society there are multiple locations and levels of public authority and individuals are increasingly subjected to various overlapping authorities. There is thus a need to separate the authority from sovereignty as well as from the notion of exclusivity. Quoting the writings by Nicole Roughan, Dr Hovell referred to the concept of ‘relative authority’ which reflects the idea of isolation of authority from sovereign power ‘in order to consider its operation in circumstances of plurality’.

    Dr Hovell concluded by noting that some have argued that the main problem with the UN Security Council does not lie in its lack of resources or unrepresentativeness, but rather in the lack of any agreement as to its purpose. In the speaker’s opinion, the purpose of the Security Council could not be spelled out in a document of a constitutional nature. Instead, Dr Hovell proposed a procedural and responsibility-based approach to the question of the legitimacy of the UNSC.

     

    Call for Papers: UCL Post Graduate and Early Careers Conference 2017

    By Ira Ryk-Lakhman, on 18 November 2016

    The Art of Balancing: The Role of Law in Reconciling Competing Interests

     

    University College London Faculty of Laws is pleased to invite submissions for its 2017 Postgraduate and Early Careers Conference to be held on 30-31 March 2017, at University College London, London, UK.

    The conference is designed to provide current doctoral students and recent PhD graduates with a forum to present and discuss their work among academic peers from different backgrounds and legal disciplines. The conference aims to promote fruitful research collaboration between its participants, and to encourage their integration in a community of legal scholars.

    *

    Conference Theme

    The Conference theme is “The Role of Law in Reconciling Competing Interests”.

    Contemporary legal problems create the need to balance competing interests, values, rights, obligations, and freedoms. This Conference will explore the response of the law and legal actors to modern challenges, be it in the context of domestic law and national jurisdictions or in the framework of international law.

    The increasing criticism against the fragmentation of legal fields have brought about the need to reconcile public, individual, and international interests. Additionally, the growing focus on States’ obligations to respect and protect human rights and freedoms has too led to a shift in the manner States conduct themselves both in the domestic and international arenas. Yet, given the ever increasing extent of international regulation and concomitant demands on limited financial, technical and human resources, it is not at all clear how these competing rights and obligations ought to be balanced. Furthermore, the mounting pressure on the States to ensure the security of their population brings about the debate over States’ ability to limit other rights and freedoms on behalf of security interests, legitimate as may be.

    *

    Relevant papers may concern any field of law.

    Examples of issues addressed by relevant papers may include (but are not limited to):

    • Human rights and public interest;
    • Necessity and proportionality and other multi-sourced equivalent norms;
    • Constitutional rights and terrorism;
    • Protection of public health and environment in trade and investment agreements;
    • Sustainable development and climate change and commercial activity;
    • Copyrights, trademarks and patent protection;
    • lex specialis and competing domestic or international law norms;
    • Legal theory’s approach to conflicting rights and freedoms;
    • Constitutional rights and the protection of rights absent a written constitution;
    • Balancing of competing interest by adjudicative bodies.

    *

    We welcome applications from current doctoral students, both in law and law-related disciplines, and from recent graduates of doctoral programs up to five years since the completion of their PhD. We encourage submissions engaging all disciplines of law.

    Selection will be based on the quality of the proposal, as well as its capacity to engage with other proposals in a collaborative dialogue.

    *

    The UCL Laws 2017 Postgraduate and Early Careers Conference will select a number of papers presented at the Conference for publication in a special issue of the UCL Journal of Law and Jurisprudence.

    All the participants will be offered an opportunity to publish a blog post based on their papers at the UCL Law Journal Blog.

    Accordingly, an invitation to participate in this conference will be issued to a participant on the following conditions:

    (1) The participant agrees to submit an original, unpublished paper between 8,000 words and 12,000 words consistent with submission guidelines issued by the conference conveners;

    (2) The participant agrees to submit a full pre-conference draft by 10 March 2017;

    (3) The deadline for submitting papers selected for publication is 15 May 2017.

    *

    Interested scholars should email an abstract of up to 750 words along with a short bio in no more than two paragraphs by 25 December 2016 to the following address: PGC2017@ucl.ac.uk.

    Abstracts should reflect papers that have not been published nor submitted elsewhere for consideration for publication.

    Successful applicants will be selected by an Organizing Committee and notified no later than 15 January 2017.

     

    Online Censorship and (the rhetoric of protecting) Children

    By Ira Ryk-Lakhman, on 11 November 2016

    A review of the recent Israeli “Porno Bill”

    By Amir Cooper Esq.*

    How to pass State-mandated censorship in two simple steps?

    First, award any such legislation proposal a catchy name. Second, state that the governmental restrictions are grounded in the need to protect the public, preferably children. If implemented correctly, this simple two-step program may be the difference between having your bill labeled as “disproportionate censorship” or “necessary protection of public interests.”

    A catchy name is important. The title should target a clear and present danger so when you hear about the bill for the first time it immediately gets your support. For instance, a government would be wise to name a proposed restriction of online content by law the “Porno Bill.” After all, nobody wants to be the person who cheers for easy access to porn for 8-year olds. After the catchy name is set in place, it would be even wiser to add an explanatory note to the Bill stipulating that the object and purpose of it is to protect children. To be sure, the protection of children is a good and worthy cause and a valid rationale for many acts of legislation. However one must be mindful that not every legislation professedly aiming at the protection of children, in fact seeks to achieve that purpose.

    So what if the Bill uses wide open-ended terminology, which potentially encompasses a wide array of content having nothing to do with child pornography, pornography more generally, or even children. As long as children are potentially protected from something and the proposed law is properly marketed to the public, the harm may go unnoticed.

    This is in fact the strategy adopted by some Western Countries when introducing new censorship proposals.

    Before passing the UK Audiovisual Media Services Regulations in 2014, which requires online porn to adhere to the same guidelines laid out for DVD sex shop-type porn by the British Board of Film Censors (BBFC), the UK Government considered a State-mandated restriction on online pornography. Under the considered (but not adopted) route, certain online contents would be restricted, by default, by Internet Service Providers (ISP). Put differently, it would have been up to customers to opt out from Internet filtering to receive access to adult content.

    When this option was considered, then PM David Cameron met with ISPs to explore possible State-mandated restrictions on online content, and opened the issue for public consultation and discussion. He explained that the Government’s aim is to “fully explore every option that might help make children safer – including whether Internet filters should be switched on as the default, so that adult content is blocked unless you decide otherwise.” Then shadow culture secretary, Harriet Harman, also went on to say that “keeping children safe online is a real problem and a concern for millions of parents.”

    Similarly, from late 2007 until early November 2012, the Australian Federal Labor Government pushed for a highly controversial State-mandated scheme whereby ISPs would be obliged to block adults’ access to online content. Any such blocked content would have been stipulated in list compiled by a governmental instrumentality, and according to what the Australian Government deems unsuitable. Here too, a mandatory compulsory filtering was proposed, and described as merely “an added step that can help protect children.” This proposal was softened and mostly withdrawn.

     Most recently, on 30 October 2016, the Israeli Government’s Committee on Legislation passed a resolution to support the legislation of the “Porno Bill.” Much like the earlier failed attempts worldwide, the explanatory note of the Porno Bill, inter alia, elucidated that, aside from the positive aspect of the Internet, it also contains materials “which may hurt and jeopardize the public and mostly children.” Accordingly, the Bill proposed a content filtering mechanism to shield children. Further, the Bill was sponsored by Parliament Member (MK) Moalem-Refaeli, who stressed, “the average age that children are exposed to pornographic sites is 8,” and she does not “think it is right to leave things like that.” Indeed, at least professedly, these arguments merit positive consideration.

    But MK Moalem-Refaeli also justified the Bill and its predicating rationale by stating that: “as parliamentarians and public leaders, we must put up road signs that say ‘this is how we think society should behave.” And this is a far more problematic statement, which emphasizes much of the concern this type of bills raise.

    What is the “Porno Bill” and how did it propose to protect children?

    The Porno Bill reflects the most recent attempt by Israeli politicians to limit access to the Internet; six such attempts were foiled and/or withdrawn in the past few years. By and large, a decision of the Committee on Legislation, usually, ensures a bill with an automatic majority support in the Knesset, the Israeli Parliament, making this legislative iteration somewhat unique.

    Under its catchy moniker, the proposed Porno Bill placed responsibility upon the Minister of Communication (currently Prime Minister Benjamin Netanyahu) to provide guidelines that define ‘pornographic’ and other ‘offensive’ content. The ISPs, in turn, were required, under the proposed Porno Bill, to limit access to such pornographic and offensive content as a default. Further, under the original Bill, an Internet user who would be interested in accessing any such prohibited content will be required to explicitly request to opt-out of this arrangement (i.e., restriction) by formally informing its ISP of its interest in accessing prohibited content.

    Ostensibly, the Porno Bill enjoyed a relatively wide support from both the left and the right wings. Amongst the supporters of the Bill, one would find secular and religious representatives, Arab and Jewish KMs, men and women, and Coalition and Opposition members.

    But the devil is in the details. The decision on what constitutes ‘pornographic’ and/or ‘offensive’ content, and the identity of the person that gets to make that decision, threatens to turn the Bill, originally meant to protect children from exposure to harmful content, into a tool for government-sanctioned censorship. In the Israeli society, a split society with exceedingly strong support for conservative ideas, the answers to these questions can be terrifying for some.

    “Offensive Content”

    Among the KMs that have explicitly attached their support to the Porno Bill one may find two members of ultra-orthodox Parties. The two subscribe to the relatively new extreme religious interpretation that men are not allowed to hear women singing. One of these KMs is known for imploring men to refuse military service, for soldiers face the risk of hearing women singing in ceremonies. Thus, for him, the mere sound of a woman qualifies as offensive content. The Porno Bill was also embraced by KMs who have declared in the past that same-sex marriages lead to the “destruction” the world and the integrity of our society. Another KM who pushed for the Bill, had, prior to his parliamentary position, paraded livestock and dogs in Jerusalem, equating them to the marchers in the Israeli gay pride parade. It stands to reason that for those who hold similar views, the mere sight of a same-sex couple holding hands is offensive.

    As religious and conservative – and some would say bigoted – views gain traction in Israel many Israelis fear that providing their Government with the power to define obscenity and limit access to offensive contents will result in excessive limitation on speech in the Internet. A power that was given to the government, as reality has it, could rarely be taken back, especially when future politicians that will attempt to reverse censorship laws risk being labeled as threatening the wellbeing and safety of children.

    “Black Lists”

    The Porno Bill, as described above, left Internet users with the option to opt-out of the Bill’s restrictions. The opt-out mechanism should presumably mitigate the fear from government censorship by providing a more balanced approach. It was designated to offer a softer alternative to pure filtering of pornographic materials or strict prohibitions, as those adopted in certain countries (see the OpenNet Initiative for a global Internet survey).

    Under the Bill, any person that would contact its ISP and requests to opt-out will be allowed unrestricted access to the interest. To comply with the Bill, the ISP would presumably be required to maintain a list of customers that formally requested access to unfiltered content, and make sure that them, and only them, are provided with such content; so far so good. But one must wonder: what would become of this list?

    Just like the explanatory note of the Bill provides, “during the last decades the Internet turned the world into a global village, granting the public easy access to different kinds of information.” Thus, and precisely for the reasons underscoring the Bill, in today’s reality it seems that the question is not “would the opt-out list be provided to third parties?” nor is it a question of “would the list be leaked?” It is rather a question of “when.” And when this “Porno List” – it seems only logical to refer to the list as such, after all a catchy name is important – finds its way to the Internet, how would you explain the inclusion of your name in the list in, say, a job interview? The very threat that an ISP’s “black list” would leak would potentially deter people from waiving the default Internet screening, even if Government eventually defines “pornography” way too broadly.

    For this reason, to some the opt-out mechanism seemed to be nothing more than an attempt to cloak government censorship with undue legitimacy.

    The outcome and what remains to be seen

    The public backlash was extensive and immediate, and before long the Porno Bill was the subject of extensive criticism in the on-line media and social networks. Like the UK and Australian proposal, the Porno Bill, notwithstanding its catchy name, was altered at an astonishing speed. Under the revised Bill, which was passed on 2 November 2016 in a preliminary reading (50:16:0), in lieu of the default censorship of offensive content and the opt-out mechanism, ISPs are obliged to contact their consumers and inform them via text message and email of an option to filter (free of charge) offensive content and offensive sites. This is not a significant change from current law that requires ISPs to notify Internet users of filtering options via mail.

    Liberal proponents of free speech have joyfully announced the Internet to be yet again safe from governmental control; at least until the next time a politician is disturbed by offensive content. Indeed, MK Moalem-Refaeli rejected the criticisms against it saying that she “will continue fighting as the web is filled with content that we would all like to shield our children and youth from. Today it is easier to be consume porn than to by a Popsicle in a store.” Similarly MK Eitan Cabel, an outspoken member of the Opposition, another co-signor of the original Porno Bill, continued to express support for the proposed censorship. He explained that “as someone who was exposed to the issue in the educational system, I stand totally behind the bill.” As for the possible infringement of right and invasion of privacy by the Porno Bill, he deemed it “proportionate considering the risks to children, not to mention the exploitation of women.”

    As ISPs and Internet companies, such as Facebook, struggle to self-regulate, governments seem to be increasingly eager to step in to fill the void by assuming more power. And while the rhetoric of protecting children is employed in the service of censorship, similar bills will resurface, as put it MK Karin Elharrar, a member of an Opposition party, who signed the original Porno Bill: “The truth is that when I signed it, it was out of a desire to protect children. But I must admit that upon reading it in depth, there were a lot of problems with it.”

    * The views presented herein are exclusively those of the author and do not reflect the views of the affiliated law firm and/or its clients.

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    Offensive content?

     

    The artefact of international jurisdiction: concept, history and reality

    By Ira Ryk-Lakhman, on 8 November 2016

    Event Summary (the full lecture was published on TDM)

    On 26 October 2016 Dr Veijo Heiskanen gave a lecture at UCL on “the Artefact of International Jurisdiction: Concept, History and Reality”. The panel was chaired by Dr Martins Paparinskis (UCL); Alison Macdonald (Matrix Chambers) and Dr Gleider Hernandez (Durham) served as commentators.

    Dr Heiskanen addressed the provenance of the concept of international jurisdiction, which generated the development of preliminary objections. On this point, he referred to the Jay Treaty arbitrations, and explained that the commissions created by the Jay Treaties were the first international tribunals operating on the international plane. At the wake of these arbitrations, several other international arbitrations were conducted in the course of the 19th and the early 20th century. The tribunals that were created to deal with these claims were usually based on a compromis, a submission agreement that referred to international arbitration a dispute that had already arisen.

    The fact that these tribunals’ jurisdiction was based on a compromis meant that it was difficult to challenge their jurisdiction by way of a preliminary objection. The sole objection the respondent State could raise to the jurisdiction of the tribunal was to challenge its jurisdiction to decide on its own jurisdiction – its “competence – competence.” However, while it was difficult to challenge the jurisdiction of an ad hoc tribunal operating under a compromis, the admissibility of the claims could still be challenged: whether the claim was really an international claim. Resultantly, a sophisticated set of rules of admissibility were developed by these early courts and tribunals to deal with such objections, and these were subsequently ratified by the Permanent Court of International Justice and became part of the corpus of international law.

    Under these rules, in order to be admissible before an international court or tribunal, a claim had to be admissible ratione temporis, ratione personae and ratione materiae – it had to be an international claim in all of these three aspects. It had to be admissible ratione temporis, that is, it had to be ripe for international jurisdiction in the sense that local remedies had been exhausted. It had to be admissible ratione personae in the sense that that the claim espoused by the claimant State had to be owned by a national of that State and not by a national of the respondent State, and it had to be admissible ratione materiae in the sense that it had to be based on a prima facie breach of an international legal obligation and not on an alleged breach of municipal law. Only if these criteria – these tests of admissibility – were met, one could say that one was dealing with an international claim.

    Thus, Dr Heiskanen explained that the rules of admissibility are, historically, about the criteria that a claim must meet, in order to be admissible as an international claim.

    Having established the above, Dr Heiskanen moved to address the distinction between jurisdiction and admissibility. According to him, this distinction emerged when ad hoc arbitration was replaced by the Permanent Court of International Justice (PCIJ), and when the exercise of international jurisdiction was first institutionalized. The PCIJ, and the other international tribunals that followed in the course of the 20th century, were not ad hoc fora. These adjudicative bodies were rather meant to firmly stand on the international plane, as a permanent presence. For Dr Heiskanen, the creation of these adjudicative bodies also brought about a new category of jurisdiction: the jurisdiction of a particular court.

    Furthermore, the emergence of these permanent bodies also introduced a new, positivist concept of jurisdiction. International jurisdiction was no longer a potentiality that would occasionally become an actuality in the form of an ad hoc arbitral tribunal; it became a permanent actuality within the limits defined in the relevant treaty. Dr Heiskanen explained that these limits could be conceptualized, and were in fact conceptualized, in the very same terms as the admissibility of claims before ad hoc arbitral tribunals, that is, in the three familiar dimensions – in terms of time (ratione temporis), person (ratione personae) and subject matter (ratione materiae).

    Dr Heiskanen then proceeded to delineate these concepts: Jurisdiction ratione temporis, he explained, is not about whether the claim is international in terms of time; it is about whether the claim arose during the time period when the treaty was in force. Jurisdiction ratione personae is not about whether the claim is international in terms of person (i.e., who owns it); it is about whether the claimant falls within the category of the subjects of law governed by the treaty; whether the claimant is among those entitled to appear before the court. Jurisdiction ratione materiae is not about whether the claim is international in terms of subject matter; it is about whether the claim relates to a subject matter that the treaty in question regulates.

    Finally, Dr Heiskanen addressed the notion of “competence”. He elucidated that while the distinction between jurisdiction and competence was initially seen mainly as a matter of legal terminology, the two concepts gradually came to be seen as different or at least potentially different concepts. On this point he stressed that the question of what “competence” really means, in concrete legal terms, and whether it really is a distinct or independent concept, has not been effectively addressed.

    He illustrated the meaning and application of these concepts. Accordingly, he maintained that objections to competence, in a technical (rather than substantive) sense of this term, may be said to relate to the question of whether a particular dispute falls within the scope of the arbitration agreement, in terms of time, person and subject matter. Thus, for instance, the question of whether the dispute resolution clause in an investment treaty covers pre-existing disputes, i.e., disputes that had arisen before the treaty entered into force, could be characterized as an issue of competence ratione temporis rather than jurisdiction ratione temporis; this latter issue is about whether the treaty covers pre-existing investments, or investments made prior to the entry into force of the treaty. Similarly, the question of whether the alleged breach is attributable to the respondent State may be said to be an issue of competence ratione personae rather than jurisdiction as it is about whether the respondent State is a proper party to the dispute; this issue may arise even if there is no dispute that the respondent State has given its consent to arbitration in the treaty.

    On a similar vein, the question of whether the claim is based on the treaty or another legal basis (say, ac contract) should arguably be characterized as an issue of competence ratione materiae rather than jurisdiction ratione materiae; in the context of investment arbitration, for instance, this latter issue is about whether the claim arises out of a “covered investment”. Like objections to admissibility, objections to competence therefore tend to be more closely related to the merits than objections to jurisdiction and often they cannot be decided separately from the merits. However, unlike objections to admissibility, which relate to the claim, objections to competence rather relate to the dispute. In other words, they are about whether the dispute is really covered by the treaty in terms of time, whether the State is really a party to the dispute, or whether the claim is really, in substance, a treaty claim.

    He stressed that this classification may have legal consequences. If an objection to jurisdiction in the strict sense of the term is upheld, the arbitral tribunal has no discretion and the claim must be dismissed for lack of jurisdiction. The same is true for objections to competence. However, because objections to procedural admissibility relate to the claim rather than the scope of the treaty or of the arbitration agreement, arbitral tribunals have a measure of discretion to determine whether to admit or dismiss the claim in the circumstances of the case.

    Building on Dr Heiskanen lecture, Ms Macdonald and Dr Hernandez offered some observations, referring to recent international jurisprudence.

    Ms Macdonald referred in her comments to the matter of Mauritius v UK. She explained the significance of the concept of “jurisdiction” by referring to the role it played in the case and the Tribunal’s rather unusual decision to join the jurisdiction objections with the merits of the case, as it forced the UK to advance, for the first time, its arguments on the merits of the case and what happened in the 1960s; from this perspective it was a victory for Mauritius. The Tribunal’s decision to join the preliminary objections with the merits affected the hearings and the way the parties litigated the case, and more importantly it facilitated the discussion of Mauritius’s sovereignty as the dissenting arbitrators upheld the Tribunal’s jurisdiction over some of the Claimant’s submissions and found that Mauritius’s sovereignty was violated by the UK.

    Dr Hernandez noted that linguistic nuances may offer an additional complexity to the discussion of the distinction between jurisdiction and competence. Thus, the English term “jurisdiction” is not synonymous with the French “juridiction”, while “compétence” in French is not the same as “competence” in English, but rather reflects a broader term, more aligned with the English use of “jurisdiction”. Thus, the distinction between the concepts may also be informed by linguistic subtleties. On this point, Dr Hernandez relied on ICJ case-law, noting that the Court does not use the concept of “competence” (let alone as a separate concept, which is distinct from that of jurisdiction and admissibility). Further, the ICJ usually juxtaposes jurisdiction with “compétence” (the French term).

    Dr Hernandez also referred to the recent Marshall Islands cases, which illustrate the difference between jurisdiction and admissibility. These cases turned on the existence of a “dispute” between the parties; professedly this constitutes an “admissibility” objection. As the Court asserted that as there is no dispute between the parties, it did not proceed to the merits stage. If so, and given the practical outcomes of this preliminary objection, it is not abundantly clear that this was in fact an “admissibility” objection. This recent jurisprudence challenges our current understanding of the concepts of jurisdiction and admissibility.