Two Weeks in Review, 24 April – 7 May 2023

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Marko Milanovic offers a summary of the Amicus Curiae brief he co-authored with Sangeeta Shah submitted recently to the ECtHR. The brief, regarding the case of Ukraine and the Netherlands v. Russia, deals solely with the downing of the MH17 plane. The authors examine the outstanding jurisdiction issues that were not dealt with in the Court’s admissibility decision, as well as the interpretation of Article 2 of the ECHR in light of applicable rules of international humanitarian law. Milanovic explains that

The first part of the brief addresses the issues of jurisdiction that are to be determined by the Court at the merits stage, discussing the rules relating to jurisdiction that apply to the conflict between Russia and Ukraine since February 2022. In particular it argues that the Court should overrule the restrictive approach it had adopted in its Georgia v. Russia (No. 2) judgment. This section also confirms the rules of attribution that should be considered when assessing state responsibility for a violation of the ECHR. The second part of the brief examines how Article 2 of the ECHR should be interpreted in light of the applicable rules of IHL. It discusses in particular how Article 2 should be interpreted jointly with Article 15(2) ECHR, which permits derogation from the right to life in respect of deaths resulting from lawful acts of war, and how the Court should take into account IHL rules on distinction, proportionality, precaution and means and methods of warfare in its analysis. Finally, the third part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 of the ECHR and applicable rules of IHL.

Read the full post here.

Sarah Thin analyses the April 2023 judgment delivered in the ICJ case of Guyana v Venezuela, pertaining to Venezuela’s preliminary objection on the basis of the Monetary Gold rule. The above-mentioned judgment relates to the admissibility and application of Venezuela’s preliminary objection, that the UK is an indispensable third party to the proceedings under the Monetary Gold principle. Thin focuses on two aspects of the judgment. The first is the distinction between admissibility and jurisdiction that the Court makes in relation to the admissibility of Venezuela’s objection. The second relates to the Court’s application of the Monetary Gold rule.

See the full post here. 

In her post, ‘The Credit Suisse Crisis and International Law II: We Live in a Swap Line World’, Aliénor Nina Burghartz explores the swap agreements that followed the recent emergency takeover of Credit Suisse (CS) by UBS. Burghartz argues that the bilateral agreements governing the swap arrangements between the ‘C6’ banks are in essence gentlemen’s agreements. Further, she argues that

[…] gentlemen’s agreements between six of the world’s major central banks have been a (or maybe even the) key international response to instability in global financial markets over the last 15 years. They have institutionalized the provision of global emergency liquidity in a club-like form and allowed the Fed – in its role as de facto global lender of last resort – to set and adapt the format of the currency swap arrangements between the C6; the other central banks have more or less just followed, although they have been bearing the credit risk involved. The de jure but not de facto reciprocal currency swap arrangements between the C6 reflect the hierarchical structure of international central banking (both within and beyond the C6 club). Pledging in form of gentlemen’s agreements between central bank(er)s has been a key instrument to channel global relations of financial domination. The far-reaching structural and distributional effects resulting therefrom call for a rethinking of our conception of monetary sovereignty.

Read the full post here.

Joseph Weiler offers his thoughts on the use of new AI tools, such as ChatGPT, in the world of higher education. Weiler suggests three, non-mutually exclusive ways, of tackling the use of AI in the context of legal exams. Amongst these, are testing the questions on the exam and previous exams on chatGPT, integrating the existence of these tools in to the exams, and asking students to write an improved version of the ChatGPT products.

Read the full post here.

Jolanda Andela and Tatevik Manucharyan explore the responsibility for ending the blockade on the Lachin Corridor in the Nagorno-Karabakh. The Lachin Corridor is the sole land route connecting the Nagorno-Karabakh region to Armenia and the outside world. The corridor blocked by Azerbaijani protesters, allegedly backed by the state’s government, has been inaccessible for over four months, creating shortages in food and medical supplies. Andela and Manucharyan argue that

To conclude, the fact that the protests, causing the blockade, have been ongoing uninterruptedly since 12 December 2022, implies that the State of Azerbaijan does not comply with its obligations under the ICESCR, the Trilateral Statement, nor the Order of the ICJ. Put differently, by not taking measures to end the blockade of the Lachin Corridor by Azerbaijani nationals, Azerbaijan is violating, among others, the right to health and the right to food of the residents of Nagorno-Karabakh, and fails to fulfill its obligations under public international law more broadly. To date, the Lachin Corridor remains closed.

See the full post here.

In her post, ‘South Korea’s Plan to Compensate Victims of Forced Labour Employed in Japanese Factories During Colonial Rule: A Step Forward for Peaceful Relations, but not for Victims’ Rights,’ Emma Baldi discusses the compensation plan recently announced by South Korea. Baldi argues that despite its potentially positive implications from an international relations perspective, the announced compensation plan proves problematic from the point of view of corporate accountability and victims’ right to prompt, adequate, and effective reparation under international law and according to human rights standards. Baldi finds that providing such reparations for historical wrongs is notoriously challenging, particularly when economic actors are involved. Nevertheless, she argues that

despite the obvious (legal, practical, and political) challenges, any effort to provide redress to victims of historical business-related gross human rights abuses should comply with the well-established standards of prompt, adequate, and effective reparation under international human rights law and ensure that companies are held accountable for their past behaviour. Home States (in this case Japan) have a clear role to play in facilitating, instead of undermining, the provision of accountability and reparation.

Read the full post here.

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