A Year in Review: 2020

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2020 has been some year and the blog has been very busy, not least because we underwent a major redesign in March which seems a rather long time ago now. In this post, we look back and offer an overview of some of the major international law events and issues of 2020 as discussed on the blog. We cannot cover everything posted, but we want to extend our thanks to our contributors for adding to the debate and discussion on all things international law this year. We hope that our readers will continue in 2021 to find the blog posts helpful and informative and EJIL:Talk! a space that contributes to academic debate. 

EJIL: The Podcast!

In 2020 the European Journal of International Law increased its offerings that contribute to the analysis of issues of international law by launching EJIL: The Podcast! This is in addition to the Journal, this blog, EJIL:Talk!, which was established in 2008, and a series of video interviews, EJIL:Live! The podcast is hosted by Sarah Nouwen, Philippa Webb, Dapo Akande and Marko Milanovic.

You can catch up on all the podcasts to date:

Episode 1: Contagion

In the first episode of the podcast, our hosts discuss the compatibility with international human rights law of the measures taken by states in the fight against the coronavirus and the indictment by the United States of Venezuelan President Nicolas Maduro.

Episode 2: WHO let the bats out?  

In this episode Sarah, Philippa, Dapo, and Marko were joined by Gian Luca Burci, former Legal Counsel of the World Health Organization (WHO), to discuss what international health law provides in relation to preparation for and responses to pandemics.

Episode 3: Hacked Off!

This episode focuses on the application of international law to cyber operations by states and non-state actors. For this discussion, Sarah, Marko, and Dapo are joined by Harriet Moynihan (Chatham House), and Tilman Rodenhäuser (ICRC).

Episode 4 – Court Between a Rock and a Hard Place

In the first part of this episode, Kamari Clarke, Professor of Anthropology at the University of California Los Angeles, joins Marko, Sarah, Philippa, and Dapo to discuss whether the ICC is able to deal with structural injustice and question whether black lives matter before the ICC. The episode concludes with a discussion of whether the ICC is able to determine the territorial boundaries of Palestine.

Episode 5 – Breaking Bad – in a Specific and Limited Way

In this episode of the podcast, Marko, Sarah, Philippa, and Dapo analyse the Internal Market Bill as it was going through the UK Parliament, which even the governments most senior legal advisers, admitted breached international law “in a specific and limited way”.

Please subscribe to the podcast on Apple PodcastsSpotifyGoogle Podcasts, or TuneIn. It is also available on several other platforms as well, and through aggregator apps on your phone or tablet. We would appreciate listeners leaving a rating or review on the platform of their choice, as this will help promote the podcast.

European Journal of International Law

The European Journal of International Law has recently introduced advanced access to articles. You can read the most recent issue of the journal (Vol 31. Issue 2) here.

US Drone Strike Against Iranian General Soleimani

It seems long ago and much forgotten now, but 2020 started with the US drone strike that killed Iranian General Soleimani in Iraq, which lead to Iranian strikes against US military bases also in Iraq. This episode sparked much debate about whether the killing was lawful which Mary Ellen O’Connell tackled in her post on the situation and Marko Milanovic also examined the lawfulness of the strike and the claims that the strike was an act of self-defence against an imminent armed attack. Patryk I. Labuda addressed issues related to the the legality of using force against Iraq given it took place on Iraqi soil and killed five Iraqi nationals. Marko Milanovic followed up with a post addressing the Iranian strikes against US military bases, arguing it was an unlawful retaliation against the US which violated Iraqi sovereignty.

Only a matter of days later a Ukrainian airliner was shot down over Tehran, causing Marko Milanovic to look at the issue of how international law handles mistakes of fact in relation to the use of force in a three part post on the issue and Henning Lahmann to respond on issues related to mistakes of fact in self-defence against cyber-attacks.

COVID-19

Unsurprisingly the topic that dominated the blog throughout 2020 was the pandemic, with at least 65 posts covering this issue from multiple angles. The most read posts include:

Other posts can be found sorted by major topics to make it easier to find something according to your interests:

Cyber Security

A further hot topic was cyber security, cyber interference, and cyber intrusions.

Dapo Akande, Antonio Coco, Talita de Souza Dias, Duncan Hollis, Harold Hongju Koh, James O’Brien and Tsvetelina van Benthem published three related Oxford statements which were opened for signature.

Steven Wheatley wrote about the cyber operations targeting elections and probes the definition of coercion, as well as the line between coercion and influencing, in some depth. Tilman Rodenhäuser reflected on the issue of ‘hacking humanitarians’ and how the IHL framework for the protection of humanitarian operations during armed conflict applies in cyberspace.

Israel joined other States in outlining their position on the application of international law to cyber operations. You can read Israel’s perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations. This sparked a two-part comment by Michael Schmitt on ‘Israel’s Cautious Perspective on International Law in Cyberspace’. Earlier in the year Michael Schmitt also analysed the main international law prohibitions and obligations associated with “vaccine espionage” and cyber operations impeding vaccine research and development programs.

International Criminal Court

The International Criminal Court contributed discussion points for many blog posts this year, not least when the US announced economic and travel sanctions against any ICC officials involved in an investigation into whether US forces committed war crimes related to the conflict in Afghanistan. Aldo Zammit Borda addressed what this might mean for the historical narratives about the conflict if were to US succeed in disrupting investigations.

One of the major issues that created much debate was the Prosecutor’s request for a ruling on the Court’s territorial jurisdiction in Palestine. In January Francesca Capone covered the background of the request and the different positions on whether Palestine is a State. Daphné Richemond-Barak also addressed the ICC’s Palestine’s Investigation and in particular issues related to temporal jurisdiction and Anthony Abato looked at questions related to the soundness of the decision to seek a ruling. Victor Kattan in a two-part post analysed Israel’s memo that was issued at the same time which argued that the ICC lacked jurisdiction over the situation in Palestine. Malcolm Shaw wrote a two-part post in June on the ICC Prosecutor Response to the Amici Briefs and offered some thoughts on territorial jurisdiction, statehood, and the definition of a State in the Rome Statute. Dapo Akande not long after considered whether the ICC could determine the territorial boundaries of Palestine and Israel, in light of the Monetary Gold doctrine.

In June Owiso Owiso wrote about the ‘fiasco’ associated with Bemba’s compensation claim. Marjolein Cupido and Lachezar Yanev analysed the Yekatom and Ngaïssona Decision confirming the charges of war crimes and crimes against humanity, in particular its findings on the legal framework of co-perpetration. Later in the year, not long after the ICC concluded the preliminary examination of the situation in Iraq/UK and decided not to open an investigation, Iryna Marchuk and Aloka Wanigasuriya covered the decision by the Prosecutor to request authorisation from a Pre-Trial Chamber to open investigations into the situation in Ukraine.Caleb Wheeler reviewed the possibility of a change in the ICC’s approach to trials in absentia after the decision in the Gbagbo and Blé Goudé case.

Douglas Guilfoyle reported on the ICC’s Independent Expert Review in a series of posts. In a three-part post in February this year, he examined the review process and the general feeling about the review and strengthening of the Court during the ASP. Then in October, Douglas Guilfoyle outlined the findings of the Expert Review report and focused on issues related to the ICC’s governance structure and workplace culture at the ICC. He later considered some of the issues related to trust, which is either completely lacking or severely eroded throughout the institution, and tenure that feature in the ICC Independent Expert Review.

International Court of Justice

In January, the ICJ issued its provisional measures order in the case brought against The Gambia v. Myanmar which Marko Milanovic outlined in his post on the subject. Anna Ventouratou covered the ICJ’s ICAO Council judgments in July and looked the issues of defences and approaches to asserting jurisdiction over incidental matters. In April Srinivas Burra explored India’s new Article 36 Declaration. In December Başak Etkin analysed the ICJ’s judgment in the Immunities and Criminal Proceeding (Equatorial Guinea v. France) case

At the tail end of 2020, the ICJ had a busy time releasing two judgments, including Arbitral Award of 3 October 1899 (Guyana v. Venezuela), clarifying the rules governing external activities (such as arbitration, teaching positions, publications, and holding positions on governing or scientific boards) of judges, and adopting a new Article 11 on Internal Judicial Practice which provides for an ad hoc committee to monitor the implementation of provisional measures.

The Environment and Climate Change

André Nollkaemper and Laura Burgers covered the Dutch Supreme Court decision in the Urgenda case which found in late 2019 that the ECHR imposed a positive obligation to take appropriate measures to prevent to climate change. Later in the year, Orla Kelleher covered another landmark decision on the issue, this time by the Irish Supreme Court, which found that the Irish National Mitigation Plan fell ‘well short of the level of specificity required’, and answered adversely on the issue of ‘greening’ existing rights such as whether the right to a healthy environment could be derived from the Irish Constitution. Helen Duffy and Lucy Maxwell address some of the human rights issues that arise in the context of climate change addressed recently in the Norwegian Supreme Court case People v. Arctic Oil: the geographic scope of Norway’s human rights obligations, and the threshold of risk required to trigger the State’s positive obligations under the ECHR.

A number of posts addressed climate change this year and the issue is bound to move up the agenda in international law circles with the Portuguese Youth case heading to the ECtHR supported by the Global Legal Action Network. Paul Clark, Gerry Liston and Ioannis Kalpouzos outlined in their post the central features of the Application and addressed some of the points raised by Ole W Pedersen in his post on the subject, including whether the fact that the claimants went straight to the ECtHR without exhausting domestic remedies might pose a problem.

Spotlight on Nagorno-Karabakh

A number of posts have focused on the international law issues arising due to recent events in Nagorno-Karabakh.

Bernhard Knoll-Tudor and Daniel Mueller reviewed the various claims brought by Azerbaijan and Armenia regarding the status of Nagorno-Karabakh over the last three decades, and comment on issues concerning the use of force, self-determination, secession as well as on the chances that the enclave’s final status will be settled. Júlia Miklasová considered the key terms of the Nagorno-Karabakh ceasefire deal signed by Azerbaijan, Armenia and the Russian Federation and their implications for various legal issues, including peacekeeping, the status of Nagorno-Karabakh, and effective control of territories, arising from this conflict.

Dapo Akande and Antonios Tzanakopoulos disagreed with the view adopted by Mueller and Knoll-Tudor and by Tom Ruys and Felipe Rodríguez Silvestre in a post over at Just Security. They instead argue that the point in this case is not whether an unlawful occupation constitutes a continuing armed attack, but whether any occupation that is the direct consequence of an armed attack constitutes a continuing armed attack. Akande and Tzanakopoulos posited that an occupation resulting from an armed attack on another state is a continuing armed attack and that the attacked state does not lose its right to self-defence simply because of passage of time. 

Symposia

We hosted a number of symposia during 2020 including:

Black Lives MatterAn open symposium which discussed a variety of global and international law issues related to the events surrounding the death of George Floyd, with contributions by Agnes Callamard, Christof Heyns, Christopher Stone, Sejal Parmar, Lawrence Hill-Cawthorne and E. Tendayi Achiume.

Book Discussion: Don Herzog’s Sovereignty RIPfeaturing contributions by Don Herzog, Jack Goldsmith, Neil Walker, Heike Krieger and James Gathii. 

The Overseas Operations (Service Personnel and Veterans) Bill Symposium – Introduction by Carla Ferstman and Thomas Obel Hansen, and posts by Aurel Sari, Noelle Quenivet, Daniel Holder, and Elizabeth Stubbins Bates.

Favourite Readings 2020 – organised by the EJIL Review Editor and Assistant Editor, Christian Tams and Gail Lythgoe, with contributions from Joseph Weiler, Diane Desierto, Jan Klabbers, Gail Lythgoe, Johann Justus Vasel, Isabel Feichtner, and Jean d’Aspremont.  

Wherever you are in the world, on behalf of the entire EJIL:Talk! team, we wish you a very happy new year when it comes and we hope that 2021 is a better year for us all. 

 

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