Two Weeks in Review, 24 October – 6 November

Christine Schwöbel-Patel and Wouter Werner offer their critique on the format of moot court competitions. The two present their new initiative the ‘experimental moot court’. The experimental moot court is not set up as a competition. Focusing on aspects of strategy and Media, its format allows for a different role for both the judges and the audience. 

Read the full analysis here. 

In their recent post, Constantinos Yiallourides, Nicholas A. Ioannides and Roy Andrew Partain review the recent agreement Between Lebanon and Israel to delimit the two countries’ territorial seas and Exclusive Economic Zones in the Eastern Mediterranean Sea. The three authors assert this agreement is ground-breaking for several reasons: First, the agreement was reached between countries that have no diplomatic relations. Second, it is the first maritime delimitation agreed upon by adjacent states in the Eastern Mediterranean. Third, it is the first maritime boundary dispute in the Eastern Mediterranean to be resolved through indirect negotiations as part of a mediation process facilitated by the United States. 

Read the full post here.

In his post, ‘Civil Liability for Violations of IHL: Are the US and UK Moving in Opposite Directions?’, Mark Lattimer, explores the Civilian Harm Mitigation and Response Action Plan (CHMR-AP). The action plan was ordered by the Secretary of Defense and outlines a major three-year program of institutional change in how the US deals with civilian harm occasioned by military operations. Lattimer argues that the new plan signals a departure from the long-standing policy of the US not to accept liability for civilian harm caused as a result of violations of international humanitarian law. Following this discussion, Lattimer examines the UK, which in recent years has given a large number of awards to compensate civilians that sustained damage as a result of IHL violations, but is now taking steps to limit its liability.

Read the full post here. 

Ming-Sung Kuo reviews the recognition of Taiwan as a state under international law. Ming-Sung Kuo argues that Taiwan’s assertion of Statehood on the basis of democratic elections as effective self-determination may lend an inadvertent hand to the PRC’s territorial claim to Taiwan. In detail: 

‘Continuing to operate under its current constitutional order, Taiwan under the name ROC (Taiwan) opens itself to the Chinese legal claim that ‘Taiwan is an inalienable part of China’s territory’ (emphasis added). To establish itself as Taiwan’s title-holding State vis-à-vis the Chinese State de jure, the ROC (Taiwan) is effectively seeking secession from China, to which the PRC can be expected to respond without reservation in the name of protecting territorial integrity under international law. Whether to replace its assumed Chinese constitutional order with a new Taiwanese Constitution or otherwise in Taiwan’s cautious quest for Statehood in international law is undoubtedly a political choice for Taiwanese citizens —what such a choice would mean to the world and Taiwan is another matter.’

Read the full post here.

In his post, ‘Facts, Intuitions and Uncertainties in the Jus Ad Bellum’, Sam Selvadurai, presents his research on international law governing the resort to force. Selvadurai explains: 

‘My research, based on systematic textual analysis of scholarly writings and ICJ judgments, and interviews with 31 UK-based international lawyers, suggests there is some validity in the well known explanation that such disagreements are driven by vagueness in the law and differences in lawyers’ interpretive techniques. My research also suggests some role for a less examined explanation: that disagreements are in part driven by the need for lawyers to make factual assessments and forecasts when they determine the lawfulness of resort to force.’

Read the full post here. 

War in Ukraine

In her post, “Could Russia Again Invoke its ‘Essential Security Interests’ in Relation to the war in Ukraine?”, Sue Ng explores Russia’s obligations and possible claims in relation to investment treaties and the WTO. Specifically, Ng focuses on claims that may be brought by investors in the context of the measures taken by Russia in Ukraine. 

Read the Full post here. 

In his post, “Orwellian Rulings of the Russian Constitutional Court on the Donetsk, Kherson, Luhansk and Zaporizhzhia Provinces of Ukraine”, Sergii Masol, offers his critique on the Russian Constitutional Court’s reasoning in affirming the legality of the Russian annexation of the Donetsk, Kherson, Luhansk and Zaporizhzhia provinces of Ukraine. 

Read his full analysis here.

International Climate Law 

Jakub Bednarek offers a short analysis of the EU’s Carbon Border Adjustment Mechanism from the perspective of the common but differentiated responsibilities principle and the right to development of the least developed countries. Bednarek argues that: 

‘in order to realize a just transition in its external dimension the EU should observe the principle of common but differentiated responsibilities as well as the right to development, which both embody substantial legal obligations. The upcoming weeks, during which the final form of the CBAM will be decided, will show to what extend the union decides to put its money where its mouth is.’

Read the full post here.

Deepak Raju, Katherine Connolly, Dominic Coppens, Michail Dekastros, Todd Friedbacher, Tanya Landon, Jennifer Lim, Nicolas Lockhart, David Roney and Iain Sandford join the spirited debate between Corina Heri and Alexander Zahar on the role of human rights law and human rights litigation in addressing climate change. The authors state that:

‘the ideal outcome in climate change is the successful negotiation of a specially designed set of rules addressing all aspects of climate change comprehensively.  However, in the meantime, it is constructive to leverage the existing rules in all areas of international law before all available adjudicators.  Not only can that exercise yield quick (even if necessarily incomplete) solutions to the urgent problems, it can also facilitate negotiated settlements by clarifying and highlighting the scope and limitations of the existing rules.’

Read the full post here. 

In his post, ‘The Protection of the Atmosphere and the ‘Regressive’ Development of International Law’, Islam Attia, explores the recent developments in Climate change law, focusing on last year’s ILC guidelines on the ‘protection of the atmosphere. While the author notes the political constraints the ILC was under in this particular matter, he asserts, the guidelines could have provided a better understanding of the obligations of states.

Read the full post here.

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