Two Weeks in Review, 17 July – 30 July 2023

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Marko Milanovic revisits the widely recognized customary prohibition on intervention, requiring States to refrain from coercively interfering in the internal or external affairs of other States. In his forthcoming article on the notion of coercion, Milanovic introduces two complementary models of coercion. The first model, coercion-as-extortion, encompasses a threat of harm or the actual infliction of harm, to obtain a concession from the victim State. The second model, coercion-as-control, involves actions involves actions that impede the victim State’s sovereign decision-making capabilities. Milanovic asserts that many of the difficulties surrounding the notion of coercion arise from the failure to distinguish between these models and urges states to clarify the non-intervention rule moving forward. 

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In their post, ‘Sovereign White Knights: Defensive State-Capitalism as a Gate Keeper of (EU) Economic Security?Victor Crochet and Weihuan Zhou explore investment screening in the EU. As the general screening framework established under EU regulations grant limited functions to it, member States are free to apply their investment screening mechanisms and retain the discretion on whether to have such mechanisms in place. The authors argue that gaps in the EU’s screening mechanisms have led to the emergence of “sovereign white knights.” These are governments stepping in to prevent foreign acquisitions of domestic corporations amid geopolitical tensions. The two assert that although this strategy provides the EU with a viable defense mechanism, it is not free of risk. The use of sovereign white knights is in fact a deviation from free market principles, holds a risk of being politicized, increases uncertainties for both domestic and foreign businesses, it comes at a cost to governments by diverting funds and resources to it, and poses unexplored implications under international investment law.

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Michael Schmitt explores Ireland’s recent policy paper on the application of international law in cyberspace. Schmitt delves into several crusial topics in Ireland’s stance, including Sovereignty, Non-intervention, Due Diligence, State Responsibility, Use of Force and Self-Defence, International Humanitarian Law and International Human Rights Law. Schmitt concludes that:

‘Having been involved in the Tallinn Manual project for the past 15 years, I am delighted that many States are now addressing the issue of how international law applies in cyberspace. Indeed, as Ireland’s position paper demonstrates, they are doing so with ever greater granularity, sophistication, and a growing willingness to take on the tough issues. And in the effort to better understand international cyber law, it is only appropriate that States take center stage. Ireland is to be commended for its willingness to do so. Other States should follow its lead.’

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In his post titled ‘An Effective Form of Judicial Treatment of Foreign Terrorist Fighters in Kosovo?’, Sylvain Keller contributes to the ongoing debate on the repatriation of ISIS foreign fighters from Syria. The author specifically focuses on Kosovo’s comprehensive repatriation project of foreign terrorist fighters, women, and children located in Syria and Iraq. Keller contends that Kosovo’s model presents a potentially more effective approach to the administration of justice. Furthermore, Keller highlights that the recognition by Kosovo of security risks posed by the absence of repatriations serves as an exemplary illustration for the international community. Despite the inherent permanent risk associated with repatriating fighters, authorities in Kosovo prioritize the need to address the potential greater threat posed by those who remain in Syria.

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Hilde Woker offers preliminary reflections on the ICJ judgment of 13 July 2023 on the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles (ns) from the Nicaraguan Coast (Nicaragua v. Colombia). In its judgment, the Court determined that, under customary international law, a state’s entitlement to a continental shelf beyond 200 nm may not extend within 200nm from the baselines of another State. Woker concludes that:

‘Rather than concluding that one entitlement (within 200 nm) trumps another entitlement (beyond 200 nm) in the delimitation process (with a possible “equitable solution” then being a delimitation at the 200-nm mark), the Court concluded that there is no overlap in entitlements in the first place. We have yet to see what the possible far-reaching ramifications of this conclusion are. What will this mean for the existence and indeed the legal validity of grey areas? How does this conclusion impact a coastal State’s delineation process? It would now be obliged to exclude from its entitlement any areas falling within 200 nautical miles of another State, including that of islands. Can a coastal State delineate the outer edge of its continental margin according to submarine features and scientific data collected from within a 200-nm radius surrounding islands abutting on the same continental margin? And, how does this conclusion affect the concept of a “single continental shelf” so religiously upheld by the case law and scholarly literature?’

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In his post, ‘Towards A United Kurdistan: Prospects for Kurdish Self-Determination,Loqman Radpey provides an overview of Kurdistan’s quest for self determination. Radpey concludes that: 

‘On the centenary of the Treaty of Lausanne, achieving outright Kurdish sovereign statehood in the name of a Greater Kurdistan comprising all four Kurdistani segments, is not presently warranted. Separate chances for each segment to achieve statehood are more likely. Should a Kurdish segment achieve independence, there will be three Kurdistani irredentas (‘unredeemed’) that might someday, through irredentism, be able to move toward incorporation within their historical, ethnic boundaries and create a United States of Kurdistan.’

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Faraz Shahlaei examines Caster Semenya’s case against the sport governing body’s regulations brought before the Court of Arbitration for Sport. Semenya, a South African runner with naturally higher testosterone levels than other females, refused to submit herself to World Athletics regulations. The regulations require intersex persons to undergo hormonal treatments to lower testosterone levels to be able to compete with other female athletes. The athlete later appealed to the Swiss Federal Supreme Court and the ECtHR. Shahlaei analyzes the decisions focusing on an evident clash between legal cultures. Further, the author discusses how the divergent perspectives of arbitration and human rights may warrant a fresh examination of the case by the ECtHR’s grand chamber.

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Yiokasti Mouratidi examines the Paris Agreement and its application with respect to greenhouse gas emissions emanating from occupied territories. The author explores this issue through a case study on the positions of Ukraine and Georgia, as States facing occupation on their territories, and Russia, as the respective occupying power. Given that the Paris Agreement does not directly address this question, Mouratidi outlines relevant existing international law principles that could assist in establishing an objective approach towards the matter. Notably, the “conservationist” principle built upon by the International Law Commission’s Draft Principles on the Protection of the Environment in Relation to Armed Conflicts and the extraterritorial effect of the occupying power’s own obligations under the Paris Agreement are identified as potentially helpful in addressing this challenge.  

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In his post titled ‘Dual Nationals in Investment Treaty Arbitration: An Emerging Field of Inconsistent Decisions,’ Javier García Olmedo provides an overview of the case law regarding duel national in international investment law. García Olmedo focuses on the most recent decisions and the key interpretative issues raised therein. The author draws three main conclusions. First, that claims by dual nationals is an emerging field within international investment law, consisted of inconsistent decisions. Second, that existing case law illustrates that individuals are increasingly adopting strategies created by corporations, in order to seize opportunities states inadvertently created for them. Third, states have the ability to curb such claims if they wish to do so. 

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Danilo B. Garrido Alves examines the ICJ’s recent decision authorizing the participation of the International Union for Conservation of Nature (“IUCN”) in the proceedings on the Advisory Opinion on the Obligations of States in respect of Climate Change. Garrido Alves asserts that due to certain specificities of the IUCN, this authorization could imply an expansion of the concept of international organizations (IOs) under Article 66 of the Statute of the Court, as well as under international law. 

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Andrea Maria Pelliconi explores the Italian Constitutional Court’s new decision on state immunity. Although it may seem possible that the decision will bring the proceeding between Germany and Italy currently pending before the ICJ to conclusion, Pelliconi asserts that the judgment does not resolve the incompatible legal positions at the core of the dispute. 

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