Two Weeks in Review: 17—28 November 2025

Is law so laggard as to be utterly helpless? Despite international law’s (purported) death knell, the daily work of courts and organisations continues apace. The last two weeks have seen discussions across a range of topics, from the UN Security Council’s resolutions on Ukraine and Gaza, to the ICJ’s Climate Change Opinion. Meanwhile the International Criminal Court and the Inter-American Court of Human Rights have ushered in digitial developments, both structural and doctrinal. As different corners of international economic law turn to thoughts of reform, recent cases in regional and domestic courts have grappled with the fundamental questions of reproductive rights and the definition of “intent to destroy” in the Genocide Convention. And amid the clanging of the bells, EJIL’s advisory and executive boards take a step back to reflect on the state of international law today.

Here are the key beats.

Ukraine and Gaza before the Security Council

Landmark resolutions on Russia, Gaza, and Western Sahara have raised questions about the fundamental norms they namecheck and the commitment to international law of the Council members that voted for them. 

Akira Kato takes Resolution 2774 on Russia’s invasion of Ukraine as an occasion to examine the obligatory abstention rule in Article 27(3) UN Charter. Arguing that Russia should have abstained as party to a dispute, he contends that proper use of the abstention rule could meaningfully shape forthcoming Security Council negotiations—not least those concerning potential territorial concessions by Ukraine.

Michelle Burgis-Kasthala turns her attention to this month’s Resolution 2803 on Gaza. She argues that behind the veil of a post-ceasefire governance plan lurks an unprecedented US-engineered framework that sidelines international law and radically reconfigures authority over the Strip. On this read, the Trump-led Board of Peace will entrench Israeli security prerogatives, marginalise Palestinian political agency, and enable de facto territorial annexation—contradicting ICJ rulings, bypassing core norms such as self-determination, and foreclosing any realistic basis for justice, reconciliation, or meaningful Palestinian statehood.

Digital Developments

At times, it can feel like international law is stuck buffering. Two posts over the last fortnight, in very different ways, point to literal and doctrinal updates that might improve the system’s operation.

In October, the International Criminal Court confirmed that it is moving from Microsoft to open-source software. Jennifer Tridgell explains why this matters legally, operationally and geopolitically. Arguing that escalating US sanctions exposed the Court’s deep dependency on US tech firms, she welcomes the increased resilience, transparency and digital sovereignty afforded by open-source. Other international courts and organisations: take note.

From digital sovereignty to informational self-determination—Yuval Shany and Yohannes Eneyew Ayalew explain how the Inter-American Court of Human Right’s ruling in the CAJAR case recognises a new autonomous digital right to informational self-determination and why this matters. In an era of pervasive surveillance, a right grounded in privacy, access to information, freedom of expression and judicial protection, both empowers individuals against abusive surveillance and reflects the need for digital-age rights beyond traditional privacy.

Reproductive Rights

Against the backdrop of a global backlash against reproductive rights and the growing role of regional human rights courts in safeguarding reproductive autonomy, Hanna Welte analyses the ECtHR’s judgment in A.R. v. Poland. She argues that while the Court rightly condemned Poland’s rule-of-law failings and recognised the applicant’s Article 8 rights, it avoided deeper engagement with Article 3 and the substantive content of abortion rights—thereby missing a key opportunity to articulate stronger protection for reproductive autonomy.

Genocide Convention: “intent to destroy”

Paola Gaeta takes us to the Swedish domestic courts, explaining how the Lina Ishaq case sheds new light on what the Genocide Convention requires when it refers to an “intent to destroy” a protected group. She argues that the forcible transfer and identity-erasure of Yazidi children—acts that dismantle a group socially and culturally rather than physically—fall within Article II(e). This aligns with jurisprudence that treats groups as social formations whose destruction need not always involve killing. As the Swedish example shows, national courts can recognise genocide in its non-physical forms, acknowledging that a group can be destroyed through the systematic annihilation of its identity, bonds, and capacity to reproduce itself.

ICJ’s Climate Change Advisory Opinion 

How deep is the ocean, how high is the sky? The ICJ’s Climate Change Advisory Opinion has vast implications, not least for the sea around our coasts and the space around our planet.

Looking down, Nathaniel Khng explains how the Opinion shapes international law on sea-level rise, maritime entitlements, and statehood: that states are not obliged to adjust maritime baselines in response to climate-driven sea-level rise and that loss of territory does not necessarily end statehood. Two conclusions that will bolster the legal positions advanced by small island developing states and are likely to influence upcoming UN negotiations.

Looking up, Yu Takeuchi and Yurika Ishii explore the Opinion’s implications for a future advisory opinion on states’ obligations to protect outer space. They argue that the Court’s method—deriving concrete duties from general environmental principles, recognising erga omnes obligations to protect global commons, and relying on soft law and scientific consensus—maps readily onto challenges such as space debris and the degradation of orbital environments. A workable legal framework for extending environmental governance to near-Earth space and for elevating non-binding technical standards into sources of normative authority.

Reforming International Economic Law

While climate lawyers pick over the Advisory Opinion, international economic lawyers have been puzzling over reform.

Gu Bin explores how the WTO, under mounting geopolitical pressures, could strengthen its institutional “fitness” by reforming its corporate governance and decision-making structures. He argues that the WTO’s paralysis stems not from its consensus rule but from its fully member-driven design, contrasting this with more flexible delegation models used by the Bretton Woods institutions and the African Infrastructure Investment Bank. Creating a smaller, empowered Board of Directors and clarifying the roles of adjudication and interpretation could rebalance legislative, executive and judicial functions and help the WTO adapt and remain effective.

Meanwhile UNCITRAL Working Group III has proposed to treat an investor’s initiation of arbitration as implied consent to jurisdiction over state counterclaims. Li Yi gives us an assessment of the draft provisions. He argues that the implied-consent rule directly confronts the long-standing jurisdictional barrier that has prevented host states from bringing public-interest counterclaims. This marks a shift from investor-centred consent towards more reciprocal procedural rights. As innovative as it is politically contested, the proposal represents a meaningful step towards aligning investor-state dispute settlement with broader public-interest concerns and enhancing the system’s legitimacy.

EJIL: The Podcast!

Nehal Bhuta (Edinburgh) and Megan Donaldson (UCL) are joined by Marco Roscini (University of Westminster) and Frédéric Mégret (McGill University) to explore the past, present and future of non-intervention. The world of today presents us with flagrant breaches of the prohibitions on the threat or use of force. But also renewed pressure and scrutiny on a related but broader prohibition—the prohibition of intervention, forcible or otherwise. In some ways, it is this broader norm of non-intervention which presents the most deep-seated puzzles in international law and international politics. In a world of profound interdependence, when should states butt out of other states’ business? 

International Law in the Current Moment

Eighty years ago, Justice Robert Jackson rose to deliver his opening statement in courtroom 600 at the Nuremberg Palace of Justice—Marko Milanovic takes us back to the first page of that speech. It is a rhetorical tour de force, but one built around a tension. The conviction that international law must meet the greatest menace of our times—aggressive war. The fear that it might prove utterly helpless to deal with crimes of this magnitude. The beating heart of Jackson’s speech is civilization, that “struggling and imperfect thing”—and the first page concludes with an invocation to the Tribunal: to “put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace”.

So where do we stand today? This very question was put to the EJIL advisory and executive boards—and their reflections will come together in a series of posts on International Law in the Current Moment. The first two came out this week.

Ardi Imseis sees the current crisis in Palestine as a paradigmatic rupture that exposes the fragility, hypocrisy, and possible unravelling of the post-1945 Western liberal international legal order. The scale of Israeli violence, Western complicity, and the stark divergence between Western responses to Palestine and to other conflicts—especially Ukraine—lay bare the double standards that have long undermined the universality and legitimacy of international law. Palestine has become the decisive litmus test for the credibility of the multilateral system. Will this moment of moral and legal crisis prompt a fundamental reconfiguration of international law, or condemn it to oblivion?

But is it really cycles of crisis that we are seeing? Arnulf Becker Lorca gives us five reasons to stay away from the “crisis and renewal” narrative. Challenging this story as both comforting and misleading, he argues that framing every upheaval as a “crisis” obscures structural injustices. That “renewal” does not necessarily amount to progress. And that the crisis-renewal lens relies on Eurocentric histories, mythologised heroes, and a selective blindness to international law’s own role in producing harm. Real change in international law has often come, not from post-war reconstructions by victorious powers, but from semi-peripheral actors creatively reworking existing doctrines. The crisis-renewal narrative not only misdescribes the past—it also limits our imagination for the future.

As ever, Mary Guest has put together announcements and events here.