Two Weeks in Review, 11 – 24 October 2021

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EJIL: The Podcast! Episode 12 – “No Licence to Kill”

In this episode, Marko Milanovic, Philippa Webb and Dapo Akande discuss the legal issues that arise from targeted killings conducted by states outside their territory. They begin with a discussion of the recent blockbuster judgment of the European Court of Human Rights in the case concerning Alexander Litvinenko (Carter v. Russia, no. 20914/07, 21 September 2021). They talk about how the Court dealt with the attribution of the killing to Russia and then explore the extraterritorial application of human rights treaties obligations – a question on which many courts and treaty bodies have given inconsistent answers. The podcast then moves on to the legal issues that would arise if the courts of the territorial state were to seek to exercise jurisdiction over the individuals accused of committing the killing or over the state that sent them.

 

Editorial

 compares the latest development in the Jurisdictional Immunities (Germany v Italy) saga to a new season of a Netflix series that is starting to get tired. Germany is now contemplating bringing the non-compliance of Italy with the ICJ decision before the UN Security Council or starting new proceedings before the ICJ. Read more here.

Posts

 writes about the ‘politics of credentials’ and politics of representation at the UN and discusses how the four options open to the Credentials Committee might play out in relation to Myanmar and Afghanistan. 

With COP26 on the horizon,  discusses two major resolutions recently adopted by the UN Human Rights Council, the first of which recognised that having a clean, healthy and sustainable environment is a human right and called on member states to cooperate to implement this right and the second established a Special Rapporteur on the promotion and protection of human rights in the context of climate change. Read more here.

 reflects on the many problems the world faces today and notes that they ‘are happening in an international system that we have inherited from the eighteenth century.’ Despite the many perceived pitfalls and dangers of an increasingly ‘lawless world’, Allott ends with a hopeful message:

We may hope that ideas about common goods and the common good that are emerging in global consciousness may come to fill a void in the ideal constitution of international society, stimulated by anguished recognition of the challenges that threaten the survival and prosperity of humanity. Those ideas might interact with the frenzied reality of the contemporary human world, to produce a new model of international law as the true law of a true international society under a true International Rule of Law.

 responds to Allott’s post, reflecting on the role of the state today and the increasing legalisation of international politics. Weller notes that many of the recent developments are a sign of ‘a Kantian, progressive process, and one in which non-state actors have been gaining influence. The state is still there, but it is becoming more inclusive and permeable to external and internal influences.’ He also suggests that the space for auto-determination has been shrinking quite dramatically over the past decade. The ‘legalization’ of international politics, even where important or vital interests of states are concerned, is marching ahead, despite the occasional reverse.’

 reviews the ‘trends’ of casual elections to the Bench of the ICJ, given there are now two candidates, Hilary Charlesworth and Linos-Alexander Sicilianos, seeking election to the position open on the Bench with the sad passing of James Crawford. The question being debated by many in international law circles is whether the seat ought to go to a person of the same nationality as the judge who resigned or died. Read more here.

Recent Decisions

 discusses the recent decision published by the UN Committee on the Rights of the Child in complaints against five states – Argentina, Brazil, France, Germany and Turkey – by 16 child complainants. Nolan notes this decision ‘significantly advances international human rights law understanding of the scope of state obligations in the context of climate change’ despite declaring the complaints inadmissible. The Committee did outline that a State party could be held responsible for the impact of its carbon emissions on the rights of children (noting also the extraterritorial application of the CRC) but was restricted to a path that did not ‘effectively gut’ the exhaustion of domestic remedies requirements. Read more analysis here.

and  offer a detailed commentary on the Maritime Delimitation in the Indian Ocean (Somalia v Kenya) ICJ judgement. They also discuss the implications of the judgment in three specifics areas: the role of non-geographical factors in maritime delimitation; the jurisdiction of the Court to delimit the continental shelf beyond 200 nm absent recommendations by the Commission on the Limits of the Continental Shelf; and the Court’s treatment of unilateral activities in disputed maritime areas. Read more here.

New Series: International Law of Intelligence Sharing in Multinational Military Operations

 has a series of four essays on the international law of intelligence sharing in multinational military operations.

In the first essay, Milanovic offers a primer to his argument that intelligence sharing can be contrary to international law where there is a rule directly prohibiting the sharing of intelligence or because of complicity in a wrongful act.

In his second essay, Milanovic examines the two scenarios that could trigger state responsibility for complicity: ‘first, intelligence sharing assisting an internationally wrongful act; second, the receiving of intelligence that was obtained and/or shared unlawfully.’ Read his detailed assessment of these scenarios here.

Watch this space for parts three and four in the coming week.

All recent Events and Announcements can be found here.

The European Journal of International Law has new advance articles and advance reviews available to read online.

The new issue of EJIL is featuring a special symposium on Martti Koskenniemi’s ‘To the Uttermost Ends of the Earth: Legal Imagination and International Power, 1300–1870’. These are now available to read as advance articles. Find out more here.

 

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