Two Weeks in Review, 25 May – 7 June 2020

COVID related posts

EJIL:Talk! Editor Diane Desierto argues that human rights should be the core of any ‘build back better’ response to COVID; human rights should be the focus of both the response to the pandemic and the reconstruction and rebuilding post-COVID. She then prescribes four steps to achieve this: internalize human rights in decisions at every level and every sector; keep human rights fact-finding channels open, because documentary and forensic evidence of human rights violations could destroyed or manipulated, or key witnesses threatened or disappeared by human rights violators in times of vast emergency powers; ‘resilience’ responses need remedial and reparative human rights accountability; and to rekindle human empathy to reanimate human rights.

Lorenzo Gasbarri discusses the recent moves to make international organisations scapegoats over COVID and discusses the legal aspects of blaming international organizations for failing to pursue their mandates. 

Tsung-Ling Lee asks why the WHO is failing and how it might be fixed. She looks at the broad debate surrounding global and national approaches to disease management, and argues that while national sovereignty remains important in the international disease control regime, post-COVID reform must include governance mechanisms to improve trust and inclusive participation at an international level.

Giulio Bartolini examines the shortcomings in the implementation of the International Health Regulations and the implementation of such obligations has suffered from various shortcomings and need for these to be supported by a substantial monitoring system.

Gian Luca Burci seeks to interpret the various contradicting statements made by Trump about the US terminating or changing its relationship with the World Health Organization and discusses the possible consequences of Trump’s statements from WHO’s perspective.  

Non-COVID related posts

Matteo Fermeglia and Alessandra Mistura examined the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the EU, the latest development in the debate on the incompatibility Intra-EU BITs with EU law, discussing its impact on current BITs and how will it impact pending and future ISDS disputes.

Kathryn Khamsi noting that COP26 was postponed due to COVID-19 and that the agreement on the rules for a global emissions trading scheme under Article 6 of the Paris Agreement will therefore be deferred again, considers the calls for the  increased linking of domestic schemes and what these schemes mean for market actors. 

Arthur Dyevre looks at the German Constitutional Court decision on the ECB’s quantitative easing programme and its possible impact on the Eurozone and authority of supranational law in Europe, arguing there is a real possibility that there will be devastating consequences for the effectiveness of EU policies. 

Harry Aitken discusses the duties and loyalties government international legal advisors have between their state and responsibility to the international legal system as a whole. He argues that these lawyers owe institutional duties in their work and presents a potential model for understanding and framing the content of such duties. 

Owiso Owiso examines the fiasco surrounding Bemba’s compensation claim at the International Criminal Court after his acquittal in 2018 and discusses the question of responsibility for internationally wrongful acts performed by states at the request or on behalf of international organisations.

Marko Milanovic provided an update on recent developments relating to the legal proceedings brought against Wojciech Sadurski in Poland. These legal proceedings target and undermine academic freedoms.

Malcolm N Shaw wrote a two part post on the ICC Prosecutor’s response to the amici briefs on territorial jurisdiction. In Part I, Shaw introduces the issue and the main question which needs answered, which is whether Palestine constitutes a State for Rome Statute purposes, and examines the claim that the Rome Statute might allows for an exceptional definition of a State. In Part II, he addresses the claim in the Prosecutor’s response that Palestine is a State irrespective of its status as a party to the Statute, therefore Palestine is a State “for the purposes of the Statute” under the relevant rules of international law. 

Gloria Gaggioli and Ilya Sobol discuss the legislative responses by European states to terrorism, arguing there is a new trend of circumventing proper judicial review and protections of criminal law by relying on ‘administrative measures’. They examine a recent Swiss bill and assess whether it is compatible with article 5 of the ECHR. 

Finally, Diane Desierto posted the full Statement on the Protests against Systemic Racism in the United States issued by the UN OHCHR Experts and gave an overview of the main legal obligations of states, in particular the US, having signed the CERD. 

You can review all recent Announcements and Events here.