Two Weeks in Review, 23 October – 5 November 2023

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Courts and Tribunals 

Matei Alexianu examines the practice of states with regard to compliance with ICJ orders for provisional measures. The author finds that compliance is ‘modest but meaningful,’ hovering around 50% but decreasing in recent years as the Court weighs in on more controversial cases. Alexianu concludes that:

‘More than twenty years ago, Judge Oda warned that “the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubt as to the judicial role to be played by the Court in the international community.” It’s not clear that this has happened yet, nor that the Court should live in fear of this threat. Even where compliance is very unlikely, the Court may want to continue issuing provisional measures orders for other reasons: to signal its commitment to and help consolidate the law, to outcast violators of international rules, or to enable other institutions to enforce those rules. But recent experience counsels the Court not to expect compliance in most cases, especially where the costs to the parties outweigh the benefits.’

Read the full post here.

In his post titled ‘When Should ECtHR Proceedings Become ‘Horizontal’? The Issue of the ‘Interested’ Third Party in A.S. and M.S. v. Italy,’ Lorenzo Acconciamessa explores the recent ECtHR judgment and various questions the case raises. Acconciamessa focuses on whether and in which cases, ECtHR proceedings should become ‘horizontal’ and allow ‘interested’ third parties to submit their comments. This question originates from the increasing number of disputes between civil parties brought before the court, differing from the vertical structure of an applicant versus a state.  The author analyses the reasons for allowing interested third parties to participate in the ECtHR proceedings and concludes that a flexible approach should be adopted.

See the full analysis here.

Bruno de Oliveira Biazatti explores the efforts to better manage the backlog in the initial review of petitions made to the Inter-American Commission on Human Rights. Over the past two decades, the IACHR packed an enormous backlog of pending applications in the Initial Review phase of the petition process. The author divides the efforts to overcome the backlog into the main phases: (1) The Registry Section (2007-2014); (2) The Procedural Delay Group (2014-2018); and (3) The Initial Review Section (2018-2021).

See the full analysis here.

Israel-Hamas War

In her post titled ‘The Lessons of 9/11 for October 7,’ Mary Ellen O’Connell examines the comparison being made between the US and UK’s invasion of Afghanistan in response to 9\11, to Israel’s ground operation in Gaza in response to the October 7 attack. O’Connell asserts that Article 51 of the UN Charter is not triggered for various reasons, but even if it was, Israel’s response still must meet the principles of necessity and proportionality. She concludes that:

The overriding lesson of 9/11 for October 7 is that ground invasions following terrorism cannot meet the conditions of lawful self-defense. International law provides effective responses to terrorism that have led in the past to peace. They can do so again.

Read the full post here.

Andreea Manea explores the lawfulness of Israeli Attacks in the context of the ongoing hostilities between the State of Israel and the terror organization Hamas. Manea focuses on a series of Israeli air strikes on the Jabalia Refugee Camp in Gaza. The author notes that the legality of targeting operations hinges on considerations of distinction, proportionality, and precautions in attack. As such she asserts that:

‘It is likely that the attacks did not violate the principle of distinction as such. However, proportionality is a more challenging component to determine. There is, as of yet, just not enough information available in the public domain in order to determine, with reasonable certainty, that the principle has been violated. Finally, while precaution in attacks seems to be more concrete in terms of its demands, specific particulars are likewise lacking and make current estimations on the degree to which Israeli forces have complied with this rule difficult. While it is true that, sometimes, no information is also information in and of itself, it is perhaps too early to commit to this idea. Time, fact-finding missions and appropriate institutions may be able to better lead us in the right direction and to, hopefully, a clearer outlook.’ 

Read the full analysis here.

More posts

In his post titled ‘Victims of Informal Institutions: The Status of National Personnel of the International Commission Against Impunity in Guatemala (CICIG),’ Lorenzo Gasbarri critically examines the differential treatment of workers received in the institution. The author unfolds the story of human rights lawyer Claudia Gonzalez, a former staff member of the CICIG. 

See the full post here.

Ruben Heusel and Patricia Wiater explore the U.S. and EU approach to ‘friend-shoring’ of supply chains. The two find that although the concept of ‘state friendship’, seemed to be forgotten over the years, it is now experiencing a renaissance in international law. Nevertheless, the authors note that the concept of ‘Friend-shoring’, raises fundamental questions about the scope of the ‘national security’ exception in WTO law. Heusel and Wiater conclude that ‘friend-shoring’ creates a fundamental conflict with WTO law: ‘while friendships are traditionally meant to last for a long, indefinite period, WTO exemptions are intended to be limited in time.’

Read the full post here.

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