Two Weeks in Review, 11 September – 24 September 2023

Victor Kattan and David Johnson call for the revival of the International Convention on the Suppression and Punishment of the Crime of Apartheid (the convention). At present, the convention remains in force and 109 states are parties to it. The authors describe the convention as dormant since its monitoring body was suspended in 1995, following the end of Apartheid in South Africa. Kattan and Johnson assert that the reasons for suspending the work of the monitoring body are no longer valid, in light of claims that apartheid is practiced beyond Southern Africa, in the Rakhine State in Myanmar, and in the Occupied Palestinian Territories, for example. The authors specifically point to the likeliness of this type of claim being brought in the context of the Advisory Opinion before the ICJ regarding ‘the legal consequences of Israel’s prolonged occupation, settlement, and annexation of Palestinian territory, including the “adoption of related discriminatory legislation and measures.”’ The authors conclude that:

‘Institutionalised systems of racial discrimination and domination, unfortunately, did not disappear from the world with the establishment of democracy in Southern Africa. On the contrary, apartheid-like practices have developed in different regions of the world as the forces of racism and ethno-nationalism have been encouraged and harnessed by extremist leaders seeking to attain or retain power. Concerned governments and human rights activists need all the tools available to combat this resurgence, which threatens increasing violence and undermines international cooperation at a time when it is needed most. The Apartheid Convention is potentially a unique and important tool in this effort and the time has come to effectively reactivate its provisions and integrate the Convention into current international human rights protection mechanisms.’

Read the full post here.

Keshav Somani conducts an analysis of the legal arguments arising in the proceedings Iran instituted against Canada before the International Court of Justice. The primary contention centers on the alleged violation of Iran’s jurisdictional immunity and immunity from measures of constraint. Recently, Canada amended its state immunity legislation, enabling it to designate a State as a supporter of terrorism, and lifted the jurisdictional and enforcement immunity of States designated as such. Consequently, Canadian courts granted pre-judgment measures of constraint, recognized and enforced several judgments issued by US courts, and exercised jurisdiction over claims brought against Iran. Somani asserts that the Canadian “terrorist exception” violates international law with regard to immunity.

See the full analysis here.

In his post titled, ‘Targeted Killings: New Allegations Against India and Ukraine,’ Marko Milanovic provides an analysis of a recent statement by Canadian Prime Minister, Justin Trudeau. Trudeau accused the government of India of committing a targeted killing of a leader of the Sikh separatist movement on Canadian territory. The author explores legal questions arising from the incident and focuses on the nature of the breach of international law that the Canadian government alleges. Milanovic then turns to discuss a recent publication alleging that Ukrainian intelligence services have engaged in a campaign of targeted killings and possible implications ensuing from it.

Read the full post here.

Douglas Guilfoyle explores the commencement of hearings of oral statements in the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, before the International Tribunal for the Law of the Sea. The author particularly notes the opening submissions by the Prime Ministers of Antigua and Barbuda and Tuvalu. Guilfoyle reflects on the reasoning for small states to bring cases to international tribunals, specifically where there is little realistic hope of immediate compliance by greater powers. The author regards the opening statements of small states in international judicial or arbitral proceedings as acts of legal statecraft.

See the full post here.

Kenneth Chan Yoon Onn offers insights on the International Criminal Court’s prosecutor, Karim Khan’s new policy on ‘Cyber Operations’, and its implications. In late August 2023, the prosecutor published an op-ed with Foreign Policy Analytics discussing the potential for the ICC to prosecute ‘cyberattacks’ as international crimes under the Rome Statute. The author asserts that the timing of the publication of the new policy is indicative of the prosecutor’s intention to widen the scope of his probe into the situation in Ukraine. Chan Yoon Onn further explores this in the context of war crimes and the crime of inciting genocide.  

Read the full post here.

In his post titled ‘Cossacks, Pussy Riot, and the Attribution of Conduct: A Comment on Verzilov v. Russia,’ Marko Milanovic provides an analysis of the recent judgment delivered by the European Court of Human Rights. In Verzilov, the second case brought before the court to concern the Russian feminist punk band Pussy Riot, it found violations of Articles 3 (bodily integrity) and 10 (freedom of expression) of the European Convention. The case concerned an incident during the Sochi Olympics, in which the band attempted to perform a song, but were prevented from doing so by several Cossack troopers. Milanovic focuses on the question of attribution, mainly, on the Court’s findings that the conduct of the Cossacks was in fact attributable to Russia and the reasoning for the conclusion.

Read the full post here.

Mohit Khubchandani examines India’s position on commercial activities in space. In 1982, India signed the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement). The Moon Agreement is an international space law instrument purposed to regulate the activities of States on the moon and other celestial bodies within the framework of the UN. The Moon Agreement aims to strike a balance between ‘exploration’ and ‘exploitation’ of the moon and other celestial bodies for non-commercial purposes.  Although India signed the Moon Agreement it did not ratify it. Therefore, it hasn’t assumed the obligations placed on the parties to the Moon Agreement. The author takes note of India’s signing of the Artemis Accords in June 2023. The Artemis Accords are non-binding guidelines regulating commercial activities in space (including the moon), primarily facilitated by the US outside of the UN. Khubchandani asserts there is tension between the two instruments and India’s international legal position therefore is not clear.

See the full analysis here.

Romina Edith Pezzot critically examines the reporting of greenhouse gas emissions in occupied territories. The author contends that the contemporary UN climate change regime lacks specificity regarding the entity responsible for reporting the emissions, thus creating a legal lacuna. Consequently, the situation led to the existence of divergent approaches among states to this question. This may potentially result in the double counting of these emissions or the absence of critical information if neither the Occupying Power nor the Occupied State undertakes the reporting. In light of these concerns, the author advocates for the adoption of an ‘umbrella resolution’ to address the existing gap in the UN climate change framework. This proposed resolution would assign the duty of reporting greenhouse gas emissions to the sovereign entity exercising effective control over the territory.

Read the full post here.

Aoife Nolan explores General Comment No.26 on Children’s Rights and the Environment and Climate Change, by the UN Committee on the Rights of the Child. The General Comment comprises a framework for a child rights-based approach to environmental protection, addressing a wide array of issues from access to justice and remedies in the context of environmental harm to delineating child rights-consistent measures that states must take to ensure climate change mitigation and adaptation. Nolan examines the origins of General Comment No.26, the process leading up to its adoption, and the elements of the document that are of particular significance with regard to the evolution not just of children’s rights law but also of IHRL more generally.

See the full post here.

All recent Events and Announcements can be found here.

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