Two Weeks in Review, 15 – 28 January 2024

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South Africa v. Israel 

In their post titled “Apartheid as a form of genocide: Reflections on South Africa v Israel,” Victor Kattan and Gerhard Kemp explore the interdependence between the definitions of the crimes of genocide and apartheid. The authors argue that the Apartheid Convention recognizes that systems of racial discrimination may lead to living conditions calculated to bring about a group’s “physical destruction in whole or in part.” Noting the references to “apartheid policies” in South Africa’s application, the authors submit that the “continuation and deepening of the system of apartheid aggravates the risk of genocide.” Read the full post here.  

Marko Milanovic shares preliminary thoughts on the ICJ order on provisional measures in the case of South Africa v. Israel. The Court found that the legal conditions for the indication for provisional measures were met, in particular that it was plausible that genocide was being committed in Gaza. However, the Court did not order Israel to stop its military operations altogether. Milanovic finds that “reputationally this is a significant blow to Israel, especially in light of the near-unanimity of the Court, and the order will also have bearing on states cooperating with Israel. But Israel avoided an order that would have mandated a ceasefire, instead being ordered to undertake measures that it is saying that it is largely doing anyway.” Read the full post here.

In his post titled “Speaking the Law, Plausibly: The International Court of Justice on Gaza,” Nico Krisch explores the ICJ’s finding on plausibly. The author concludes that:

“The strength of the decision is that it does what courts often do best – speak the law, establish the facts – even though this is not what provisional measures are normally about. The decision generates unity about the finding of a plausible risk of genocide in Gaza – it is primarily expressive, speaking to world public opinion in the hope to foster common understandings. In contrast, the actual provisional measures remain vague – the Court does less to specify what would need to be done to prevent irreparable harm and to shape and channel political discourses in this respect. This may be because of internal dynamics or for fear of being disobeyed. In the end, the Court speaks truth to power, but it does so rather timidly.”

Listen to the latest episode of EJIL: The Podcast! “Episode 23: Unhappy New Year! Genocide in the Courtroom.” In this episode, Dapo Akande, Marko Milanovic and Philippa Webb, joined by Mike Becker, discuss the oral hearings before the International Court of Justice on provisional measures in the South Africa v. Israel case, in which it is alleged that Israel is committing genocide in Gaza.

International law in domestic courts 

In his post titled “Uneasy Alliances: The Gaza-Conflict before Dutch Courts,” Lachezar Yanev explores the impact of the ICJ ruling on provisional measures in South Africa v. Israel. The author notes that the decision will likely impact how third States assess their ability to continue offering military support to Israel. To demonstrate this point, Yanev examines a decision by the District Court of The Hague (currently on appeal), that refused to grant an injunction against the Netherlands to halt the delivery of F-35 jet fighter parts to Israel. See the full analysis here.

Koldo Casla delves into the ongoing discussion on the binding nature UN Treaty Body decisions on Spain. Following the zigzag the court has undergone over the years with regard to this question, the author concludes that:

“Treaty Bodies often include recommendations of more general nature with law and policy changes that could, hopefully, prevent similar cases from happening in the future. Usually, these recommendations use similar language to that of country reports (concluding observations). In my opinion, these general law and policy recommendations cannot be considered directly binding. States should engage in good faith and respond meaningfully in a constructive dialogue. But policy processes have their own cycles, multiple layers of government may be affected, and quite simply no recommendation written with the best intentions in Palais Wilson should overrule immediately a national democratic mandate. General recommendations do matter greatly, but not as a matter of law, but because they can provide a helpful set of priorities and proposals for civil society and policy actors to rally behind.”

See the full post here.

Grace Nishikawa and Marlies Hesselman examine a domestic lawsuit requesting an injunction to stop the release of the Fukushima nuclear waste water filed by a group of Japanese citizens with a Japanese court. The authors draw attention to the interpretative controversy under the London Protocol (LP). Their complaint, largely based on individual rights under the constitution, invokes various international environmental law provisions, including under the LP. The authors assert that the Fukushima District Court can contribute to this particular chapter of the international debate on the management of the waste water, as well as to domestic case law on the role of international law in such courts. Read the full post here.

Law of the sea

Ekaterina Antsygina undertakes an examination of the December 2023 announcement by the US Department of State regarding the outer limits of its extended continental shelf (ECS). The author notes that the publishing of the US ECS outer limits has significant legal and geopolitical implications. The publication does not only provide clarity on overlaps with other neighboring states but has the potential to initiate discussions between the US and its counterparts. See the full post here

Following the US Department of State’s announcement on its ECS, Khaled Elmahmoud explores its background. The author notes that although the US participated in the Third Conference on the Law of the Sea, which resulted in the adoption of UNCLOS, it is not a State party to the Convention. Therefore, the author asserts that it is uncertain whether the US, as a non-party, can rely on UNCLOS to oblige other States to accept the delineation of the outer limits ECS. Furthermore, he concludes that:

“allowing non-parties to pick and choose which provisions of UNCLOS they consider beneficial to their position and therefore applicable as rules of CIL would undermine the authority of UNCLOS. Becoming a State party, which is obligated to follow all UNCLOS provisions regardless of their benefit to national interests, would be of little use if such a practice were permitted.”

Read the full post here.

In their post titled “Seafloor High Shopping: (Mis)applying Article 76 of UNCLOS?” Bjørn Kunoy and Walter Roest explore Russia’s claim that the Gakkel Ridge is part of its continental margin. Read the full post here.

More posts 

Following the ongoing discussions on the seizing of Russia’s frozen assets, Philipp Kehl explores the international legal fora that would be competent to adjudicate Russian claims on the matter. The author undertakes an examination of Russia’s options to bring legal claims regarding a possible confiscation of its foreign assets, assessing which ones are most likely to be chosen by Russia, and discussing the obstacles and risks Russia would face if it decided to sue. See the full post here.

Martin Fink examines whether the recent attacks on merchant shipping could trigger the right of self-defense. In particular, focusing on whether the attacks by the Houthis from Yemen territory on merchant ships in the Red Sea would activate the right of self-defense. As the traditional interpretation of this right applies in cases of an armed attack by one State against another State, the author contemplates the UK and US’s justification for their actions based on the right of self-defense. Read the full analysis here.

Noting that many high-impact disputes involving the environment are often resolved in private commercial arbitration, rather than through public litigation, Laurence Doering offers a mapping of environmental dispute that typically ended up in arbitration. Doering accounts for six recurring types of dispute that have emerged from the review. Read 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.

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