Two Weeks in Review, 10 April – 23 April 2023

Katie Johnston explores the Good Friday Agreement in the context of International Treaty Law. Johnston analyses the potential implications of the hybrid nature of the multi-party agreement of 1998 and relevant subsequent practice under the British Irish Agreement of 1999. In particular, the relationship between the multi-party agreement and the obligations created by the future reform of the NI political institutions. Johnston argues that the 1998 agreement is relevant to the interpretation of the UK-EU Withdrawal Agreement.

See the full post here. 

Giulio Bartolini examines the Law of Neutrality and state practice in the context of the Russia-Ukraine conflict. The writer focuses on the largely unexplored positions of States on the provision of belligerent materials. The practice in this field could provide a legal perspective on the factual provision (or non-provision) of belligerent material. Bartolini argues that based on the positions held by States, the reasoning for providing and abstaining from providing military support can be identified in part in the law of neutrality. For example, in the concept of ‘benevolent/qualified’ neutrality, potential exemptions for non-lethal military material, or, conversely, refusals of military assistance. Further, theories centered outside the law of neutrality could be recorded using references to circumstances precluding wrongfulness, such as collective self-defense and countermeasures. The writer notes that

To summarise, this conflict is a further scenario in the continual shift of the pendulum between public and private interests in international legal order. Legitimate expectations about ius ad bellum concerns and community interests might conflate with beneficial effects of the ‘strict’ neutrality regime, which was set up to limit the spread of armed conflicts and keep economic business as usual. Only future conflicts might finally solve the issue of whether current conduct could consolidate relevant legal developments in this area.

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In her post, ‘The Crotone Migrant Shipwreck: A Cat-and-Mouse Blame Game and the Role of Technologies at External Borders‘, Aphrodite Papachristodoulou explores State obligations and responsibility towards persons in distress at sea. Following the events of the Crotone migrant shipwreck, Papachristodoulou focuses on state responsibility deriving from the exercise of extraterritorial human rights jurisdiction and the nexus between the State’s capacity to act and the impact of its (in)actions. The writer concludes that the Crotone migrant shipwreck is a reminder to adopt a humanitarian migration response and its necessity. 

See the full post here.

Samantha Robb, Aline Jaeckel, and Catherine Blanchard examine how the agreement on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ Agreement) may affect the International Seabed Authority’s (ISA) negotiations on its Mining Code. In particular, the writers focus on the BBNJ’s high standard for environmental impact assessments, which, the writers argue, can and should affect the way in which impacts of deep seabed mining are assessed. Further, the writers discuss capacity-building obligations in the context of marine genetic resources (MGR), transparency of ISA environmental data, and the scope of the obligation to submit periodic reports on MGRs collected in the context of seabed mining. The three conclude that 

For the BBNJ Agreement to reach its full potential, it will be crucial to ensure cooperation and coherence with existing ocean regimes, such as the seabed mining regime under the auspices of the ISA. Seabed mining has the potential to lead to biodiversity loss and cause serious harm to the marine environment, including noise pollution. Managing it in a manner that is compatible with the BBNJ Agreement will be a key step towards realising the aims of this new treaty.

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In her post, ‘J.A. and Others v. Italy – Is the European Court of Human Rights turning its focus to maritime migrants?‘, Matilde Rocca compares the ECtHR’s judgments of J.A. and Others v. Italy and that of Khlaifia and Others v. Italy. In particular, Rocca focuses on aspects of inhuman and degrading treatment, arbitrary detention and collective expulsion of aliens. Rocca finds the J.A. judgment to be an important step towards enforcement of maritime migrants’ rights at the southern borders of Europe, and concludes that

Beyond the substantive importance of the judgement, J.A. also constitutes an opportunity to evaluate the position of the ECtHR as a human rights judicial body vis-à-vis rights enforcement of maritime migrants. Over 10 years after the landmark judgement of Hirsi Jamaa and Others v. Italy, it can be argued that with J.A. the Court (re)positions itself as a key judicial body committed to the upholding of human rights of migrants both at sea and on land. However, it will be interesting to keep an eye on future developments. Concerning the ECtHR’s case law, the J.A. judgement could not be final as Italy may still request a referral to the Grand Chamber. (Arts 43 and 44) Moreover, the pending case of S.S. and Others v. Italy still awaits a final judgement. Will the Court follow the J.A. approach or will it fall back on previous ‘missed opportunities for justice’? Only time will tell.

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Yunqing Liu discusses whether states party to the Rome Statute have an obligation to arrest Vladimir Putin with respect to a cooperation request from the International Criminal Court if he appears in their territory. Further, Liu examines Putin’s immunity (ratione personae) as a head of a non-party state in this regard. Liu finds that the Court’s jurisprudence enables it to request the party states to arrest and surrender Putin if he appears in their territory. In line with this, if a party state refuses such a request, it would violate its obligations as a party state to the Rome Statute. That being said, Liu argues that the relevant reasoning of the court, in this context, remains highly controversial, and it is yet to be seen how states will react to the Court’s jurisprudence.

In his post, ‘The Death of Nuclear Arms Control Treaties’, Dan Joyner discusses Russia’s suspension of its participation in the 2010 New Strategic Arms Reduction Treaty (‘New START’). The New START, a bilateral nuclear arms control treaty between Russia and the U.S., is the last nuclear arms control treaty in effect between the U.S. and Russia. Joyner points out that if and when New START expires by its terms or is mutually suspended, there will be no international legal limits on the stockpiling and deployment of nuclear weapons by the U.S. and Russia. Joyner refers to this situation as a generational crisis in international nuclear arms control law, to which, Russia’s suspension moves the crisis even closer to realization.  

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Tess Castelijn and Lachezar Yanev discuss arbitrary detention in non-international armed conflict with regard to the trial against Hashim Thaçi and three other defendants in the Kosovo Specialist Chamber (‘KSC’). The two explore whether arbitrary detention in a non-international armed conflict was a war crime under customary international law during the 1998-1999 armed conflict in Kosovo. In this context, the writers compare the reasoning used by the KSC judges, to the reasoning used in the recent Abdulrazaq Judgment, bringing both courts to establish that arbitrary detention of civilians in a NIAC is a war crime under customary international law. The writers find that 

… the methodology used by the KSC and the District Court of the Hague to establish ‘arbitrary detention’ in NIAC as a war crime – namely, reading Common Article 3 of GCs as an open-ended provision, which allows unspecified conduct to be by itself considered a war crime if it is deemed incompatible with the ‘principle of humanity’ – is problematic. At the same time, when considering specifically the work of national courts that are trying core international crimes, the question naturally arises of how realistic and feasible it is that a full-blown ‘Tadic conditions’-analysis (specifically, on elements (ii) and (iv)) could be carried out by a chamber of e.g., Dutch judges who have many other (non-ICL) cases to process. Relying on the ICRC’s seminal study of customary IHL is highly recommended, so long as this does not translate into automatic, uncritical acceptance of the ICRC’s findings. These are some of the challenges that domestic courts, in particular, would need to wrestle with when taking on the task of developing ICL beyond the parameters established by the ICC and the UN Tribunals.

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In her post, ‘The Objective Friends of the Court – New Insights into the Role of Third Parties before the European Court of Human Rights’, Justine Batura examines the ECtHR’s recent publication on Third Parties before the court. The recently published Practice Direction focuses on the modalities of Third-Party Intervention and announced an amendment of the Rules of Court. Batura reviews the changes that have been implemented in the update and how they differ from current practice, with a particular focus on the case dealing with the Russian Invasion of Ukraine in 2022.