Two Weeks in Review, 14-27 March 2022

New issue of EJIL

The latest issue of the European Journal of International Law  (Vol. 32 (2021) No. 4) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Readers can access those articles that are freely available without subscription at EJIL’s own website. The free access article in this issue is On the Judge Centredness of the International Legal Self by Fuad Zarbiyev. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Michal Saliternik, Sarah Nouwen and Joseph Weiler introduce the last issue of 2021 in their editorial and Christian Tams introduces the review section in his editorial.

Joseph Weiler and Sarah Nouwen thank colleagues for their contribution to EJIL’s peer review process and award the EJIL Peer Review Prize 2021 to Dr Leena Grover. They also announce changes to the Scientific Advisory Board, Editorial Board, and editorial team. 

EJIL:The Podcast! Episode 15 – Now or Never, Or Maybe Later: The Use of Force to Recover an Occupied Territory

This episode accompanies the launching of a new rubric in the European Journal of International Law – Legal/Illegal. The first installment of Legal/Illegal, which appears in issue 32(4), focuses on the question whether the use of force by a state to recover a territory that has been occupied for many years may be considered a lawful act of self-defence.

In the Podcast, Michal Saliternik interviews the authors of this section: Tom Ruys and Felipe Rodriguez Silvestre on the illegal side, and Dapo Akande and Antonios Tzanakopoulos on the legal side. Beginning with the second Nagorno-Karabakh war, passing through the conflicts over the Falkland Islands, the Golan Heights, Northern Cyprus, and the Chagos Islands, and concluding with the Russian occupation of Ukrainian territories, they discuss the compatibility of forcible recovery of an occupied territory with the self-defence immediacy and necessity requirements as well as with the obligation to settle territorial disputes through peaceful means. They also discuss questions of justice and fairness, both towards the conflicting states and towards the inhabitants of the occupied territory.

Russia’s use of force against Ukraine

Alexander Wentker addresses the status of states that provide support to either Russia or Ukraine and details the legal criteria that must be met to establish when states become parties to an international armed conflict and applying these to the situation in Ukraine. Read Wentker’s analysis here.

Alexander Lott looks at Russia’s blockade in the Sea of Azov and the obligation to allow free passage of foodstuffs and other essential supplies to Mariupol which is in midst of a humanitarian crisis. Read Lott’s analysis on the legality of the blockade here.

Andrew Sanger examines the role of private actors in enforcing international law norms and the response of many companies to Russia’s invasion of Ukraine. Read Sanger’s analysis on the piercing the state’s corporate veil here. 

Linde Bryk and Gõran Sluiter also look at the role of private actors and argue that corporations should consider withdrawing their activities, ‘not only from a moral and ethical perspective, but also to avoid contributing to the commission of international crimes, with the subsequent risk to be held criminally liable.’ Read their analysis on the criminal liability of corporations for complicity in war crimes.

Lando Kirchmair and Cornelia Schäffer examine the treatment of cultural property in Russia’s war of aggression and argue that the ‘deliberate destruction of cultural objects, an essential, indeed indispensable element of the collective memory of a people, is nothing less than an assault on the (cultural) identity of this very people.’ Read their analysis here.

Jannika Jahn proposes an amendment to the ECHR that removes the link between the ECHR and CoE membership such that states like Russia would remain bound by human rights obligations when suspended or excluded from the CoE. Read Jahn’s proposal here.

An anonymous author argue that ICC jurisdiction over war crimes committed in Ukraine ‘extends to Russian officials and commanders who, while situated in Russia, may have ordered, aided or tolerated the commission of such crimes on Ukrainian soil.’ Read more of their analysis here.

Maksym Vishchyk responds to Alain Pellet’s post recently published on the blog, in particular how Pellet addressed the Crimean Tatars. Vishchyk discusses the continuing human rights violations and crimes committed against Crimean Tatars since 2014 in his response.

Ukraine v Russia

Deepak Raju looks at the Ukrainian legal strategy in its ICJ case with a comparison to the concept of “reverse compliance proceedings”, a feature of dispute settlement at the World Trade Organization. Raju argues these proceedings ‘can be a useful tool when a State seeks the cessation of another State’s conduct, which is factually premised on, and seeks legal justification from, the alleged violation of law subject to the “reverse compliance” proceedings.’ 

Marko Milanovic offers an assessment of the provisional measures indicated against Russia by the ICJ in his post, noting that ‘the language that the Court uses is often very direct, going out of its way to make points that it was not legally required to make but were required by the necessity of the moment.’

Other posts

Anthea Roberts and Taylor St John continue to offer analysis on UNCITRAL and ISDS Reform. In their post, Roberts and St John give insights into the most recent session of UNCITRAL Working Group III.

Makoto Nakagiri comments on recent negotiations on the Draft Convention on the Right to Development and argues there is a risk that the right to development is ‘retransformed into an instrument of domination wielded by States over their populations while continuing to claim support from the international community’. Read more here.

Pavlos Eleftheriadis offers his thoughts on the Greek pushbacks and suggests that these should be interpreted as instances of ‘state sponsored lawlessness and not merely as discrete episodes of violence.’ This would expose the ‘more serious matter of the planning and execution by the respective governments of a state-wide framework of lawlessness, designed to guarantee secrecy and impunity for those involved.’ Read Eleftheriadis analysis here.

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.