March 28, 2021

Two Weeks in Review, 15 – 28 March 2021

Written by Gail Lythgoe

Arron N. Honniball examines some procedural law issues that arose in the Mauritius/Maldives Preliminary Objections Judgment that related to whether Judges ad hoc can participate in proceeding by different means (remote or in person), and whether Judges ad hoc can be directed to participate by a particular means. If the hybrid format is capable of preserving the equality of participation in hearings during ‘exceptional’ times, Honnibal asks whether the hybrid format should be embraced in the future under ‘normal’ circumstances too.

Marko Milanovic revisits two decisions of the UN Human Rights Committee (A.S. and others v. Malta and A.S. and others v. Italy) and addresses the threshold question of the extraterritorial application of the ICCPR. Milanovic discusses the legal framework and the facts that the UN Human Rights Committee considered relevant to trigger the jurisdiction of each State. His earlier post on the two cases can be read here.

Laura Yvonne Zielinski considers the issue of space debris and notes the unlikeliness of a new multilateral treaty to address the problem. As a result, Zielinski questions whether the existing ISDS framework that could mitigate this issue, through a creative interpretation of the obligation that host states exercise due diligence to protect investors’ satellites from harm that could be caused to them by space debris and thereby giving states an incentive to mitigate space debris.

Başak Çali looks at Turkey’s Presidential decision that the state would withdraw from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) and reflects on the role of the CoE given that the purpose of the regional organisation is the protection of human rights, rule of law and democracy in the domestic legal orders of its member states.

Claire EM Jervis considers the issue of the transfer of data to international organizations and the application of the GDPR. Jervis notes that there are difficulties in applying the GDPR, a legal framework designed for states, to international organizations and considers whether there could or should be a public interest exception for all or only some organizations.

Ed Robinson looks at a UK Supreme Court decision, G v G, and the approach it adopted to reconciling potentially conflicting treaties governing (i) the protection of refugees and (ii) the return of abducted children to their previous state of residence. Robinson argues that while there was no ‘creative’ avoidance of their obligations, in relation to the most problematic areas, the Court effectively delegated the work to other actors in the UK legal system.

Ethan Shattock contributes to the recent legal debates related to the issue of disinformation and whether the ECtHR should invoke its “abuse clause” under Article 17 ECHR for cases concerning disinformation.