States and Statehood

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When More is Less: The US Department of Defense’s Statement on Cyberspace

On 2 March 2020 Paul Ney, General Counsel to the US Department of Defense (DoD), gave a speech at the US Cyber Command Legal Conference setting out the DoD’s position on the application of national and international law to cyberspace. Robert Chesney (at Lawfare) and Michael Schmitt (at Just Security) have provided a panoramic assessment of the legal issues arising from this statement. This post focuses on one particular aspect of the DoD’s statement: its treatment of the rule of sovereignty under international law. Two questions are addressed: does the DoD view sovereignty as a rule of international law applicable to cyberspace and, if so, what types of malicious cyber activity does the DoD regard this rule as prohibiting. The Rule of Sovereignty In May 2018, the UK Attorney General took the position that sovereignty is not a stand-alone rule of international law. For the UK, it is only those cyber operations that rise to the level of coercive intervention or a use of force that are internationally…

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Conditional Decisions: A Solution for Ukraine v. Russia and Other Similar Cases?

On 21 February 2020, the tribunal in the Coastal State Rights arbitration between Ukraine and Russia rendered an award on preliminary objections. Although the tribunal decided that the case would proceed to the merits, it held that it did not have jurisdiction over any of Ukraine’s claims that would “necessarily…

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The Award concerning Preliminary Objections in Ukraine v. Russia : Observations regarding the Implicated Status of Crimea and the Sea of Azov

On 21 February 2020 the arbitral tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its…

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part II

  In my previous post, I argued that contrary to the view of the GOI, a Palestinian state has existed since 1919, and a Palestinian government was established – even if momentarily – in the territories occupied by the armed forces of Egypt and Jordan during the 1948 war following the termination of the mandate. This was known…

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part I

  On 20 December 2019, the Prosecutor of the International Criminal Court (ICC) published a 112-page document requesting that Pre-Trial Chamber 1 rule within 120 days on the Court’s territorial jurisdiction in the situation in Palestine. On the same day the request was made public, the Government of Israel (GOI) published a 34-page memorandum of the Office…

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