Two Weeks in Review, 20 November – 3 December 2023

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Climate change

Siyu Bao delves into the involvement of civil society in China concerning the realm of climate change. In the year 2021, China expressed its interest in joining the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), a free trade agreement that institutes formal mechanisms for involving civil society in environmental affairs. The author posits that if China were to accede to the CPTPP, it would be obligated to adhere to the environmental submissions and referral procedure as outlined by the free trade agreement. With a specific focus on climate change, Bao contends that the distinctive procedural framework of the submissions and referral procedure presents an experimental avenue for engaging civil society in China within the policy domain of climate change. This holds particular significance in light of the historical constraints on access that civil society has faced in this sphere.

Read the full post here.

In their exploration of the Australia-Tuvalu Falepili Union Treaty, signed on November 9th, 2023, Douglas Guilfoyle and Alex Green unravel the dynamics of the world’s inaugural climate resettlement treaty. This groundbreaking agreement permits Tuvalu’s citizens, faced with imminent climate threats, to reside, study, and work in Australia. The treaty not only grants access to Australian education, health services, and crucial income and family support upon arrival but also potentially holds profound significance in terms of Statehood practice, as Article 2(b) commits to upholding Tuvalu’s statehood and sovereignty amid climate change-induced sea-level rise. Against this backdrop, the authors meticulously assess the circumstances leading to this historic accord and scrutinize its far-reaching implications for international law, offering a critical perspective on its role in addressing the pressing challenges of sea-level rise and climate adaptation.

Read the full post here.

UNCITRAL

Anthea Roberts and Taylor St John provide their analysis to the investor-state dispute settlement (ISDS) reform process underway in UNCITRAL Working Group III which has entered the delivery phase. Offering a comprehensive overview of the reform plan, the authors outline the anticipated timeline for the emergence of these reforms and scrutinize the intricate ways in which these proposed changes may or may not fit together. Emphasizing a keen focus on the unfolding dynamics of the delivery phase, Roberts and St John explore the ongoing and potential developments that are shaping and will continue to shape, the trajectory of ISDS reform within UNCITRAL Working Group III.

See their full analysis here.

In an additional post titled ‘UNCITRAL and ISDS Reform: Lifelong Learning,’ Anthea Roberts and Taylor St John reflect on what they have learned about ISDS through listening to states and explore implications for future research. The two examine the work undertaken by UNCITRAL Working Group III, which is facilitating learning and generating authoritative information as states put their experiences with ISDS on the record. The authors find this process to be a rare opportunity to learn about ISDS from states.

See the full post here.

Güneş Ünüvar reflects on the 46th session of the UNCITRAL Working Group III on ISDS Reform, with a specific focus on deliberations surrounding the establishment of an advisory center dedicated to international investment law. This envisioned center aims to provide legal and technical assistance in the context of investor-state disputes. Ünüvar recounts the evolution of Working Group III’s mandate since its inception in 2017, emphasizing the nature and responsibilities anticipated for the prospective advisory center. The author concludes that:

‘The documentary evidence suggests that the WGIII’s mandate had been defined broadly and comprehensively, giving plenty of deference to its collective will and, arguably, its ability to establish consensus. Indeed, when certain states or ‘coalitions’ of states believed an issue to be insurmountable, the formal line of reasoning was that it exceeded the mandate. As such, I argue that what the WGIII can and cannot do is less about the normative limitations imposed upon it by its mandate, and more about what is perceived to be politically achievable. As noted above, this benchmark of ‘feasibility’ has been guiding the contours of this mandate from the outset – hence the acknowledgment that the contents of substantive principles such as the fair and equitable treatment were considered challenging to agree upon. What is perceived as ‘beyond’ or ‘within’ this mandate can ebb and flow accordingly if states’ positions on specific issues shift or approach one another politically. After all, as noted by the delegation of Sierra Leone, perhaps it is precisely because a consensus is difficult that states should discuss contentious issues and try to find solutions instead of avoiding them. Through these debates, a meaningful reform of ISDS may eventually be possible.’

Read the full post here.

Israel-Hamas conflict

Mara Tignino and Tadesse Kebebew undertake a comprehensive exploration of the impact of armed conflict classification on the protection afforded to freshwater in the ongoing Gaza conflict. Their analysis delves into the implications for access to freshwater in situations in which Israel is considered an occupying power and those where such designation is absent. The authors contend that if Israel is deemed an occupying power, actions such as water supply cuts and restrictions on resources vital for purification, supply system operation, and repairs would contravene international humanitarian law and human rights law. Furthermore, if not regarded as an occupying power, interference with humanitarian relief efforts triggers human rights obligations under IHL. Examining the aspect of proportionality, the two find that in both scenarios, the military advantage gained by restrictions on access to freshwater based on its potential use by Hamas is disproportionate compared to its consequences on the population. The authors ultimately conclude that:

‘Given the extensive damage to vital infrastructure in Gaza and the restrictions on access to freshwater supplies, it is crucial to evaluate the rules governing the conduct of hostilities, particularly those protecting water, water-related infrastructure and essential services for the population. However, the challenge persists in assessing compliance with these rules amid the ongoing armed conflict and the lack of information from an impartial fact-finding mechanism.’

Read the full post here

Marina Sharpe explores the IHL rules governing humanitarian access in the ongoing Gaza conflict. These rules, according to Sharpe, extend beyond mitigating the effects of a siege on civilians, applying whenever civilians in armed conflict are inadequately supplied with items essential to their survival, such as food, water, and fuel. The author provides a comprehensive overview of IHL rules on humanitarian access and subsequently analyzes how these provisions apply to Israel, Hamas, and Egypt, especially concerning territorial access to Gaza. Sharpe concludes by emphasizing the imperative for all parties involved to adhere to their obligations, ensuring timely and unrestricted humanitarian relief reaches civilians in need, without arbitrary hindrances.

See the full post here.

Self-defense  

In his post titled ‘Self-Defence as an Exception to the Principle of Non-Use of Force: Debunking the Myth,’ Russell Buchan replies to a recent blog post by Marko Milanovic, in which he examines whether Israel can rely on the right of self-defense to justify its military action against Hamas. In his post, Buchan focuses on the claim that the right to self-defense under Article 51 of the UN Charter is dependent on the application of Article 2(4). The author refutes this argument, focusing on a possible implication of it – that the right of self-defense under Article 51 only permits the use of forcible measures to halt and repel an armed attack. Buchan concludes that:

‘States may decide to use non-forcible but otherwise unlawful measures to confront an armed attack, such as economic sanctions and cyber operations. Construing self-defence as an exception to the non-use of force principle would exclude these measures from the ambit of self-defence. As I have shown, this interpretation of the law of self-defence is not supported by international law. Rather, there is a wealth of evidence to indicate that self-defence covers all measures necessary to halt and repel an armed attack, regardless of whether they are forcible or non-forcible in nature. Moreover, this approach is desirable as a matter of policy for two reasons. First, it enhances the effectiveness of the right of self-defence by widening the response options available to States. Second, it can help de-escalate international crises – put differently, interpreting self-defence as an exception to the prohibition on the use of force may push States into using force to counter an armed attack when they may otherwise determine that non-forcible measures are sufficient and adequate.’

See the full post here.

Other posts

Bjørn Kunoy undertakes an analysis of the recognition of a customary rule of international law in the recent ICJ case on Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (NICOL II). The Court observed a general trend in which coastal States had “chosen not to assert” outer continental shelf entitlement “within 200 nautical miles of the baselines of another State”. The respondent argued that in 51 submissions of States, under Article 76 of UNCLOS, the proposed outer limits “stopped at the 200-nautical-mile zones of other States when on technical grounds [..] they could have gone further”. The Court held that this practice reflected a rule of customary international law. The author examines whether the ICJ needed to undertake the analysis required to determine the existence of a customary rule of international law. He concludes that existing international law does not allow outer continental shelf entitlements to extend into areas landward the 200 M distance line of States with an opposite coast. As such, he asserts that there was no need for the ICJ in NICOL II to undertake the analysis for the identification of a customary rule of international law.

See his full analysis here.

Anh Nguyen explores the US employment of extraterritorial economic measures designed to restrict the transfer of critical technologies to China as a means of hampering China’s technological edge in high-tech sectors, for which it still relies on foreign exports of advanced chips and equipment. Against this backdrop, Nguyen analyses the US Commerce’s announcement on 17 October 2023 regarding new semiconductor export control restrictions, which brought China to start accumulating photolithography machines produced by a Dutch company named ASML. The author assesses the extraterritorial reach of the export controls on Dutch lithography machines under the framework of public international law, the WTO framework, and EU instruments.

See the full analysis here.

In his post titled ‘Guyana v Venezuela: Intriguing Pleadings in an (In)conspicuous Case,’ Milosz Gapsa explores the proceedings held by the ICJ. The author focuses on the oral arguments held during November on the request for provisional measures in Guyana v Venezuela. The author asserts that the ongoing events and arguments put forward by the parties have unfolded in intriguing ways. He finds that if the Court were to address all aspects of the requests, it could shed light on ‘fascinating elements of provisional measures proceedings.’

See the full post here.

See Joseph Weiler’s recommendations in his post ‘10 Good Reads 2023.’

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