Two Weeks in Review, 19 July – 1 August 2021

EJIL: The Podcast

Episode 10 of EJIL: The Podcast is now out. Accompanying the Symposium on that question in EJIL issue 32(1), this podcast contains a duel between anti-anti-international law & democracy scholar Akbar Rasulov and anti-international law & democracy scholar Brad Roth. Hosted by EJIL Editor in Chief Sarah Nouwen, they disagree on the curious fate of international law & democracy, on the politics of form versus the politics of substance and the role of the international lawyer. 

The debate continued on this blog: read Akbar Rasulov’s rejoinder here and Brad Roth’s subsequent response. 

Russia

A number of posts over the last two weeks address issues concerning Russia. 

Giulio Fedele writes about the Fedotova v. Russia case at the ECtHR, which held that Russia violated Art. 8 of the ECHR for not providing same-sex couples with the opportunity of having their relationships legally acknowledged. Fedele offers an overview of the case and the previous case law, and argues that ‘some points still remain in need of further clarification, for example the role of margin of appreciation and the existence of consensus, as well as the limits and extension of the positive obligation and its relevance for other contracting States.’

Marko Milanovic looks at the recent filing by Russia of an interstate complaint against Ukraine. Milanovic suggests this move ‘is a direct reaction to the most recent interstate claim brought by Ukraine against Russia … and to the proceedings (currently pending on admissibility before the Grand Chamber) in the Netherlands and Ukraine v. Russia case’. He notes that Russia has adopted positions in this application that appear to be at odds with those they have previously adopted, particularly in relation to the application of the ECHR in armed conflict and the ECHR’s extraterritorial application. 

Saba Pipia comments on a recent maritime incident between Britain and Russia, when a British warship sailed through ‘Crimean waters’. Russia issued warnings, fired shots, and later claimed that Britain violated UNCLOS. Britain claimed that the warship was exercising innocent passage through Ukrainian territorial waters. Pipia examines the legal position of these waters, arguing that, while ‘Ukraine retains legal sovereignty over Crimea and its maritime territories, the actual control is suspended by Russia’s occupation’, meaning the area in question falls under a special legal regime. Pipia also assesses the claim of innocent passage and whether the shots constitute a threat of force. 

Paula Anna Jenner also addresses this incident and looks in further detail at the issues that arise under the Law of the Sea, especially innocent passage. Jenner argues that ‘the HMS Defender’s passage should in principle be considered innocent’ and that the ‘Russian harassment constitutes an infringement of the principles enshrined in UNCLOS’. 

Other posts

Gustavo Prieto writes about the decision by Ecuador to rejoin the ICSID Convention, after notifying in 2009 its denunciation of the convention. Prieto looks at some of the domestic issues surrounding Ecuador’s ‘exit strategy’ and considers the legal, political, and economic implications of leaving the ICSID. According to Prieto ‘the Ecuadorian experience exposed the downsides of an IIA exit strategy. One problem was the considerable amount of time needed to leave the regime … Another was that, as an outsider, Ecuador lost its voice in the debates on reform of the investment regime over the last decade.’ 

Dr. Vahid Bazzar considers the legal problems, and possible dispute settlement options, arising because the US has denied the visa applications of many of Iran’s representatives to the UN. Bazzar argues that the ‘US has violated its international obligations under the General Convention and the Headquarters Agreement’ and notes that both Iran and the US disagree on how to implement these obligations. Unlike the Convention on the Privileges and Immunities of the UN, the Headquarters Agreement is a bilateral agreement between the UN and the US, meaning that Iran must request the UN Secretary-General to act. 

Stefan Talmon comments on the recent decision by the Chamber of the Court’s First Section in Grzęda v. Poland to relinquish jurisdiction to the ECtHR’s Grand Chamber, overruling Poland’s objection to the proposal. Talmon considers whether the Court is amending the ECHR through the backdoor using the Rules of Court, given that the Chamber rejected Poland’s objection because it was not ‘duly reasoned’ as set out in Rule 72 § 4. Talmon argues ‘that Rule 72 § 4 of the Rules of Court introduces a totally imprecise and ambiguous condition’ and in this instance the Rule has ‘allowed the Chamber to disregard an unwanted objection on the ground of it being “unduly reasoned” – without itself giving adequate reasons for that decision.’

Dr Silvia Behrendt and Dr Amrei Müller call for a critical reflection on the possible legal and human rights implications of any new pandemic treaty. They argue that recent reports ‘contain remarkably little analyses of the far-reaching and multi-faceted detrimental effects’ that responses to Covid-19 have – issues which they argue should be reflected upon before a new treaty is agreed. They also question some procedural issues that might arise as a result of negotiating a new treaty under Article 19 of the WHO Constitution.

Talita de Souza Dias and Sahil Thapa in a two part post consider the role of international human rights law in connection with the online hate speech that overshadowed the European Championship final. In Part I, they look at the problem of hate speech, including the use of seemingly innocuous emojis, and the applicable legal framework under the ICCPR and ICERD. In Part II, they consider the UK’s response to the online hate speech and argue that the current laws in England and Wales are insufficient and difficult to implement. 

All recent Events and Announcements can be found here.

The European Journal of International Law has new advance articles and advance reviews available to read online.