Two Weeks in Review, 25 October – 7 November 2021

Series: International Law of Intelligence Sharing in Multinational Military Operations

Marko Milanovic published a series of four essays on the international law of intelligence sharing in multinational military operations. 

• Essay 1: Primer
• Essay 2: Framing Complicity
• Essay 3: State Fault in Complicity
• Essay 4: Concluding Thoughts

Milanovic concludes that

the sharing and receiving of intelligence may either be contrary as such to some rule of international law (e.g. the human right to privacy, or a bespoke treaty regime), or may trigger state responsibility on the basis of complicity in a partner’s violation of international law. The complicity scenarios pose the greatest set of difficulties…

…[W]hile the web of legal rules that apply in complicity scenarios, such as those of intelligence sharing in military operations, is a complex one, the conceptual and practical difficulties in interpreting, applying, and developing these rules are not insurmountable.

ICJ Vacancy

Philip Alston responds to a post by Antonios Tzanakopoulos on whether there is special practice for appointing judges to the ICJ when a ‘casual vacancy’ arises by suggesting that there is and that practice appears to be the appointment of men. Read Alston’s post here.

Readers might be interested to read that Hilary Charlesworth was elected to the Court by the UN General Assembly and Security Council on the 5th of November 2021.

Climate Change and COP26

Başak Çali questions whether the UN Committee on the Rights of the Child correctly applied its admissibility criteria concerning the exhaustion of domestic remedies rule in Saachi et al. v. Argentina, Brazil, France, Germany and Turkey, given Article 7(e) OPIC provides that exhaustion of domestic remedies ‘shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief.’ Çali suggests that the inadmissibility decisions were:

handy because it allows to Committee to fend off backlash from states, whilst at the same time telling the children that the Committee is willing to take on the climate crisis, but only when children litigate and lose domestically.

You can read more analysis on these decisions by Aoife Nolan. 

Gail Lythgoe discusses the status of the COP26 Blue Zone which has been described as ‘international territory’, ‘UN territory’, ‘still [UK] sovereign soil’ and ‘private space’ in the run up to the conference in Glasgow and how this situation may offer us insights into the concept of territory in international law. Read more here. 

Given we are in the middle of the two-week COP26 climate talks, readers might be interested in further recent blog posts about climate change. 

Annalisa Savaresi discussed two major resolutions recently adopted by the UN Human Rights Council, the first of which recognised that having a clean, healthy and sustainable environment is a human right and called on member states to cooperate to implement this right and the second established a Special Rapporteur on the promotion and protection of human rights in the context of climate change. Read more here.

Saskia Stucki, Guillaume Futhazar, Tom Sparks, Erik Tuchtfeld and Hannah Foehr recently presented the World Lawyers’ Pledge on Climate Action, urging ‘lawyers of all kinds to incorporate climate responsibility into their professional work and activities’ and for the ‘mainstreaming and integrating climate concerns into all areas of law and legal activity’. You can find out more about this petition and how to sign it here.

Benoit Mayer responded to this call setting out why he cannot sign it.

Other Posts

Philippa Webb comments on the recent decisions by the English courts concerning the immunities of foreign leaders and discusses the contributions made by these cases to the debate about which high-ranking offices enjoy immunity ratione personae from jurisdiction of foreign courts. Read more here.

Nicholas Tsagourias and Constantine Antonopoulos analyse the recent bilateral treaty between France and Greece on the ‘Establishment of Strategic Partnership of Cooperation in Matters of Defence and Security’ to establish whether its collective self-defence clause is compatible with Article 51 of the UN Charter and the customary law of self-defence and whether it is compatible with the North Atlantic Treaty. Read their analysis here.

Kai Ambos discusses the recent decision by the ICC Prosecutor to close the preliminary examination of the Situation in Colombia and the agreement between Colombia and the Office of the Prosecutor, in which Colombia commits to support the national judiciary and the Special Jurisdiction for Peace. Read more about ‘the return positive complementarity’ here.

Symposium

The blog is pleased to announce that we are hosting a discussion of David Lefkowitz’s recently published book Philosophy and International Law: A Critical Introduction (CUP, 2020).

Andreas Follesdal and Steven R. Ratner opened the discussion with an introduction to the book and to the symposium.

Adil Ahmad Haque thinks Kelsen is missing from David Lefkowitz in his reading of the book International Law: System or Set?.

Look out for posts by Carmen Pavel, Nicole Roughan and Alejandro Chehtman, as well as the response from David Lefkowitz, in the coming week.

All recent Events and Announcements can be found here.

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