Two Weeks in Review, 20 November – December 4

New Issue of EJIL (Vol. 33 (2022) No. 3)

The latest issue of the European Journal of International Law  (Vol. 33 (2022) No. 3) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

• Read the table of contents
• Read the Editorial by Associate Editor Ana Luisa Bernardino
• Read the Editorial by EJIL Review Editor Christian Tams

Related posts 

In her post, On My Way In III: It’s Not All About Me: Writing a Cover Letter for an Academic Position, Sarah Nouwen reflects on the cover letter as a genre of academic writing. Nouwen notes that many cover letters miss a key point: the opportunity to make a case for a fit between an individual and a place. Meaning, effective cover letters show the applicant’s consideration of the needs of the hiring institution and how he or she would meet those needs. Nouwen refers to this understanding as ‘job first, applicant second.’

Read the full post here.

Ukraine

Gaiane Nuridzhanian examines control in the context of the war in Ukraine and questions of jurisdiction under the ECHR. Following the Court’s finding on the five-day war in Georgia, Nuridzhanian notes, that the court has jurisdiction over specific events that took place prior to 16 September 2022, when Russia ceased being a party to the ECHR. In the six months, before Russia withdrew from the ECHR, there have been clear instances of Russia’s armed forces or Russia-controlled armed groups exercising effective control on parts of Ukrainian territory, as were cases of members of these forces exercising physical control over individuals’ life and personal liberty in Ukraine. She asserts that:

‘The documentation of the conflict by domestic and international actors should facilitate the task of establishing circumstances of such territorial or personal control at least in most, if not all, potential cases. The Court should therefore take a case-by-case approach to examination of the complaints stemming from the war in Ukraine. A general conclusion that the Convention does not apply to Russia’s actions during its full-scale war in Ukraine, similar to the Court’s finding on the five-day war in Georgia, would be against its well-established jurisprudence on the spatial and personal bases for states’ extraterritorial jurisdiction.’

Read the full post here.

Tomas Hamilton, examines the prospect of corporate accountability for Iranian drones used in Ukraine during the war. Hamilton asserts that the production and transfer of Iranian drones present one of the most compelling scenarios of corporate complicity in Ukraine since 2014. In particular, the sanctions on military support to Russia identify specific individuals and appear to establish a clear factual link to indiscriminate Russian attacks against civilians. He notes, that this close causal nexus, combined with the undeniable awareness of alleged war crimes, may provide fertile grounds for an important and expressive criminal prosecution.

Read his full analysis here.

Natia Kalandarishvili-Mueller explores the protection afforded to civilians under GC IV 1949, in the context of the Russian filtration camps in Ukraine. The author asserts that while IHL does not contain the term filtration, this does not signify that IHL allows the setting up and existence of such camps. Although IHL permits civilian internment in times of International Armed Conflict, it does so under very specific and protective rules set out in GC IV. Kalandarishvili-Mueller concludes that:

‘Russia is not providing any competent and adequate periodic reviews to those protected under GC IV who are in its hands. Instead, a handful of Russian soldiers execute the so-called filtration process. Witnesses who have endured those camps detail traumatic and distressing treatments such as torture, malnutrition, humiliation and interrogations (here, here and sources above). Therefore, Russia’s filtration camps for Ukrainians are a flagrant violation of the accepted rules on internment set out by the GC IV. Filtration camps are to be considered a grave breach of Article 147 GC IV because Russia is engaged in “torture or inhuman treatment … unlawful deportation or transfer or unlawful confinement of a protected person(s)”. Running and maintaining such camps also violates Article 75 of AP I, especially §2, 3, and 6. Finally, Russia organising, administering, and continuing with the filtration camps is a war crime under Article 8 of the ICC Statute.’

Read the full post here.

In the wake of the popular votes organized by Russia in the occupied Ukrainian regions, Daniel Moeckli and Nils Reimann examine the notion that sovereignty referendums are a tool to legitimize territorial claims. The authors argue that the most important requirements for referendums under international law is that they be held in a peaceful environment; civil and political rights must be effectively protected; voter qualification must be based on reasonable criteria; the referendum question must be clear; and compliance with these requirements should be monitored by international observers. The two specifically stress the importance of the voters freely expressing their will, and assert that holding a referendum is the best way of giving people a say in sovereignty issues.

Read the full post here.

More posts

Following Turkey’s withdrawal from the Istanbul Convention, Başak Çali and Laurence Helfer examine the notion that unilateral treaty withdrawals are sovereign decisions that are not subject to legal scrutiny. they assert that the Council’s response to Turkey’s withdrawal from the Istanbul Convention reinforced the consensual view of treaty exit, missing an opportunity to develop the distinctive understanding of human rights agreements that the ECtHR and other international courts have developed and that states subsequently followed. The authors highlight two approaches to evaluating the exit from human rights treaties, the ‘lex specialis’ view, and the ‘gendered’ view.

Read the full post here. 

In their post, On Binaries, Blind Spots, and Shades of Gray: The UN Report on LGBTQ+ Persons in Armed Conflict, María Cecilia Ercole and Abadir M. Ibrahim, examine the new UN report, presented to the General Assembly at its 77^th session. The report concludes that the current international regime is not effective in fully protecting LGBTQ+ persons during armed conflict. In their post, Ercole and Ibrahim explore some of the salient issues raised in the report, expand upon them, and probe some areas for improvement in the field of IHL, in particular regarding Common Article 3 of the Geneva Conventions and IHL special protections. 

Read their full analysis here.

In his post, Project 2100—Is the International Legal Order Fit for Purpose?, Sir Daniel Bethlehem KC, argues the legal order as it stands today is no longer fit for purpose. In his analysis, he mentions the struggles the legal order faced in the past decades, Covid, the global financial crisis of 2007-8, climate change, national security threats, the war in Ukraine and others. He notes:

‘The international legal system has struggled to cope with these challenges. There has been affirmation, innovation and resilience.  But we are patching and re-engineering and re-upholstering a heavily worn vehicle rather than asking ourselves whether we need a more fundamental overhaul for the next leg of the journey.’

Read the full post here. 

Joseph Weiler shares his pick of ‘Good Reads’ from the books he read in 2022. Amongst others, these include Moshe Halbetal and Stephen Holmes, The Beginning of Politics: Power in the Biblical Book of Samuel (Princeton University Press, 2017), Jean-Philippe Toussaint, La Salle de bain (Les éditions du minuit, 1985), The Bathroom (transl. Nancy Amphoux and Paul De Angelis, Dalkey Archive Press, 2008), Tommaso Pavone, The Ghost Writers (Cambridge University Press, 2022), and Ferdinand von Schirach, The Collini Case (Penguin 2013). See his full post 

Read the full post here.

In his post, Is there a Right to be Protected from the Adverse Effects of Scientific Progress and its Applications?, Andrew Mazibrada examines the scope of the right to protection from the adverse effects of scientific progress and its applications. Under the interpretation of Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights, an entitlement to access the benefits of scientific progress and its applications, particularly technology, is almost certainly settled content of the right to science. Mazibrada argues that entitlement to protection from adverse effects can be properly interpreted from Article 15 as a whole, but the scope of its application and the nature of the duties and obligations it creates are complex and require careful analysis if that interpretation is to be accepted and implemented.

Read the full analysis here.

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