Two Weeks in Review, 18 – 31 January 2021

Jule Giegling discusses the legality of the trade measures imposed by China to combat COVID-19 under the SPS Agreement which have been the subject of criticism and brought to the attention of the SPS Committee. Giegling concludes that China should provide a risk assessment which helps evidence the validity of an SPS measure or China may be in violation of its obligations under the SPS Agreement.

Douglas Guilfoyle comments on the criminal investigations into Australian war crimes in Afghanistan and the implications for command responsibility based on some contentious findings contained in the Brereton Report. Guilfoyle has written an earlier post summarising the Brereton Report and the background to the criminal investigations which can be read here. 

Marko Milanovic wrote a couple of posts on the recent ECtHR judgment in Georgia v. Russia (No. 2). He outlined in advance some of the key issues before giving an in-depth and helpful distillation of the judgment and concluding that it is a ‘Bankovic redux in more ways than one’ after the judgment was delivered. Milanovic argues that the ECtHR in this case has gone against the expansive trend in international human rights law regarding both extraterritoriality and the applicability of human rights in armed conflict. 

This week we enjoyed this appropriate meme by @IntLawMemes on twitter:

Kai Ambos comments on the decision by a British court to reject the request to extradite Julian Assange to the United States and offers an assessment of the legal complexities of the case. Ambos calls it a ‘humanitarian victory’ after the presentation of evidence that there was a risk of Assange committing suicide and this ultimately proving to be the deciding factor. 

Aziz Tuffi Saliba and Mariana Ferolla Vallandro do Valle assess the Inter-American Court of Human Rights judgment in the Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil (Fireworks Factory case), focusing on the Court’s interpretation of the right to equal protection of the law and the handling of reparations which saw the Court ordering Brazil to design and execute a socioeconomic development program for the town of Santo Antônio de Jesus.

Mike Videler discusses, in the context of COVID-19, the preconditions for taking a case to the ICJ for any alleged breaches of the obligations in the Constitution of the World Health Organization or International Health Regulations to share information and examines a potential conflict between the differing dispute resolution mechanisms in the WHO Constitution and the IHRs.

Paola Patarroyo offers analysis on the International Court of Justice adoption of a new Article 11 of its Internal Judicial Practice in December 2020 and the potential implications in current and future cases, especially in The Gambia v. Myanmar.

Toni Marzal comments on the recent inflation in ISDS of compensation awarded to investors as a result of tribunals adopting the DCF (discounted cash flows) valuation method to determine the value of the investment affected by the State’s breach and argues there is a need to rethink the calculation of compensation for the loss of future profits

Marko Milanovic returns with more on extraterritoriality, offering an explanation of an amicus curiae brief that he and Sangeeta Shah submitted to the ECtHR in the case of Ukraine and the Netherlands v. Russia and his assessment of the decision by the UN Human Rights Committee in a couple of cases against Malta and Italy dealing with their failure to rescue more than 200 migrants whose vessel sank in the Mediterranean in 2013.

As always, you can read all the recent Announcements and Events here.