Two weeks in Review, 16 January – 29 January

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In his post, ‘The Law of Immunity and the Prosecution of the Head of State of the Russian Federation for International Crimes in the War against Ukraine’, Miguel Lemos explores the possibilities of prosecuting the persons who are (allegedly) most responsible for such crimes, particularly, the head of state of the Russian Federation and commander-in-chief of its armed forces, Vladimir Putin. Lemos analyses the contextual distinctiveness of the two main decisions in this context, the ICJ in the Arrest Warrant case, and the Judgment by the International Military Tribunal given in the aftermath of the Second World War. He concludes that the national courts of Ukraine may legitimately prosecute Vladimir Putin for the crimes perpetrated “in connection” with the conflict in Ukraine, since, from a legal standpoint, Ukraine’s courts have the strongest claim to being the most appropriate forum for the initiation of such proceedings. Nevertheless, Lemos argues that from a political perspective, it might be wiser not to undertake such prosecution in the domestic courts of Ukraine, but rather to transfer such power to international courts or tribunals.

See his full analysis here. 

Toni Marzal examines the latest decision in the Rockhopper v Italy award, issued by the  ICSID tribunal in the dispute between Rockhopper, a British oil and gas company, and the Italian Republic. The decision noted that Rockhopper had met all conditions set by Italian law for the license, and yet the Italian republic denied the license to exploit an offshore oilfield, due to legislation banning oil production concessions within a certain distance from the coastline. Therefore the tribunal awarded Rockhopper €185 million in compensation (over €240 million with interest). Marzal argues that the expulsion of environmental considerations from the reasoning of the Rockhopper award has the effect of making climate change interventions considerably more costly, by increasing the scope of regulations considered to be expropriatory, and by inflating the amounts that will need to be paid in compensation. More, he argues that beyond its regulatory effects, the overlooked environmental considerations were indeed pertinent, to both the existence of an expropriation and the quantum assessment. Marzal concludes that

For these reasons, the arbitral decision can only be read as disastrous for the environment. It makes the ECT’s fundamental incompatibility with the need to address the climate emergency so glaring, that it might actually help spur European governments, who heretofore have usually not been on the receiving end of ISDS claims by the fossil fuel industry, to finally give up on the treaty, rather than engage in its so-called modernisation. That might be the only saving grace of the Rockhopper v Italy award.

Read the full post here. 

In his post, ‘Kosovo is a Country, and a Country Means a State, Rules the Court of Justice of the European Union’, Kushtrim Istrefi, discusses the recent decision of the Court of Justice of the European Union. The CJEU agreed with Spain that, according to EU treaties, there are no differences between countries and States, and clarified that notions of “country” and “State” (at least under the EU law) are interchangeable. More, it confirmed that Kosovo can be treated as a “third country” under the EU treaties, while such treatment does not imply its recognition by five EU states. He concludes that

Beyond Kosovo and the EU, the judgment confirms that issues of admission of new States to international mechanisms are separate from that of recognition. Namely, a State that is not recognised by all its member may join an international mechanism without affecting its bilateral relations with non-recognisers. In such vein, for example, Kosovo has joined a number of international organisations without necessarily altering its bilateral relations with non-recognising States.

Read the full post here. 

Hitoshi Nasu explores the recent WTO Dispute Settlement Panel’s ruling against the United States on the product labeling requirement for all goods from Hong Kong to be marked “China” as their country of origin. The Panel found that the US requirement was discriminatory against Hong Kong and constitutes a breach of Article I:1 of the GATT 1994, Articles 2(c) and 2(d) of the Agreement on Rules of Origin, and Article 2.1 of the Agreement on Technical Barriers to Trade. In so doing, the Panel dismissed the US argument that the origin marking requirement was justified for national security reasons pursuant to Article XXI(b) of the GATT 1994. Nasu argues that the Panel’s approach is overly formalistic and unbalanced, leaving no margin of appreciation for the assessment of a situation. Moreover, he argues the decision serves as an illustration of arbitrariness and inconsistency in international adjudication that could undermine the judicial authority to make an objective determination against the claim of a security exception. Nasu finds the Panel’s assessment in the US – Steel and Aluminium Products cases is more acceptable since its findings are based on the lack of relevant information as the basis for establishing an emergency in international relations, rather than its own assessment of whether a situation qualified as such. 

Read the full analysis here. 

In his two-part post, co-editor of EJIL: Talk!, Marko Milanovic analyses the Grand Chamber of the European Court of Human Rights’ much-anticipated decision on jurisdiction and admissibility in the interstate case of Ukraine and the Netherlands v. Russia. In short, the case concerns complaints related to the conflict in eastern Ukraine involving pro-Russian separatists which began in the spring of 2014. The Government of Ukraine principally complained about alleged ongoing patterns of violations of a number of articles of the European Convention on Human Rights by the separatists and the Government of the Kingdom of the Netherlands complained about the shooting down of Malaysia Airlines flight MH17 in eastern Ukraine on 17 July 2014, which resulted in the deaths of 298 people, including 196 Dutch nationals. Milanovic notes the Court declared the applications admissible, as a clear win for the applicant governments. More, It also made numerous pronouncements of systemic importance for international human rights law, most of them moving the Court’s jurisprudence in a good, sensible direction. In part one, Milanovic explores the ‘good’, and in part two, he notes the ‘bad and the ugly’.

Read part I here, and part II here. 

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