Two Weeks in Review, 26 February – 10 March 2024

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International Court of Justice (ICJ) 

Brian L. Cox provides an analysis of security assistance to Israel following the ICJ provisional measures order in South Africa v. Israel. Cox explores the interpretation and implications of the ICJ’s order, particularly regarding the risk of complicity in genocide for states providing security assistance to Israel. The analysis studies the legal standards applied by the ICJ, contrasts the provisional measures requested by South Africa with those adopted by the Court, and finds that the order itself does not significantly alter the legal landscape or increase the risk of complicity in genocide for states supporting Israel. Read the full analysis here.

Gabriela García Escobar examines the ICJ’s judgment in Ukraine v. Russia regarding CERD’s Scope of Racial Discrimination, focusing on deviations of the ICJ from the interpretations adopted by the CERD Committee regarding the meaning and scope of “racial discrimination”. The first diviation was in relation to indirect discrimination, and the second diviation was in relation to differential treatment between citizens and non-citizens. Read the full post here.

Jed Odermatt and Bilyana Petkova explore the application of the political question doctrine in dipsutes brought before the ICJ. The authors highlight a recent instance where a US district court dismissed a lawsuit alleging US complicity in the purported genocide in Gaza, citing the political question doctrine, which suggests that certain matters should be addressed by the executive or legislative branches. This discussion echoes the ongoing debates about whether international courts, like the ICJ, should implement comparable doctrines to navigate politically sensitive disputes, such as the Israel-Palestine conflict. Read the full post here.

Eugenio Carli explores the question of state responsibility for complicity in genocide under the 1948 Genocide Convention, in the context of the South Africa v. Israel case before the ICJ. Carli provides an overview of ICJ case law on this matter, and his thoughts on the various questions noting that South Africa’s claim against Israel of complicity in genocide is unsubstantiated and thus the dispute will not provide further insight on state complicity in genocide. Read his full analysis here.

Seizure of Russian assets

Daniel Franchini explores the European Union Council’s decision on Russia’s Central Bank reserves (CBR) and its legal challenges. The author finds that taxing the windfall profits generated by holders of CBR’s securities presents minimal international law hurdles, where as targeting interests generated by CBR’s assets belonging to Russia would likely trigger legal challenges equivalent to those of a full asset seizure. Franchini concludes that:

“While CSD’s profits can offer only a small contribution to Ukraine’s needs, implementing a windfall tax on them may be a valuable starting point. Beginning with the most legally sound option could pave the way for exploring more innovative approaches to leverage these assets in support of Ukraine. This is especially critical at a time when public support for financing Ukraine’s war effort across Western states appears to be dwindling.”

Read the full post here.

In his post, Harold Hongju Koh argues for the seizure of frozen Russian assets in response to Russia’s invasion of Ukraine. Koh asserts that international law permits such action, suggesting that lawful countermeasures can be employed to enforce compliance with international legal obligations. By seizing Russian assets, Koh contends that not only can Russia be held accountable for its aggression, but also that Ukraine can be compensated for its losses. He proposes the temporary suspension of sovereign immunity for these assets, aiming to exert pressure on Russia to end the conflict and engage in negotiations for resolution. Read the full post here.

More posts

Federico Bonito examines the newly established international Mission Appeals Tribunal (MAT) designed to provide judicial relief to civilian personnel hired in out-of-area NATO-led missions. The author notes the tribunal’s role which underscores the importance of accountability and fairness in NATO-led missions’ personnel management and beyond. Bonito finds that the MAT’s establishment and early cases signify a significant step forward in enhancing accountability and fairness within NATO-led missions. As the MAT continues its work, its role as a new member of the IAT community will evolve, shaping the future of international administrative law. Read the post here and here.

Marko Milanovic explores various scenarios related to false speech in academic settings. Milanovic considers scenarios involving professors teaching manifestly false facts in classrooms, publishing false information in academic papers or on social media, and facing consequences such as rejection for job applications or disinvitation from speaking engagements due to their false statements. The scenarios prompt questions about the boundaries of academic freedom, the role of universities in promoting truth-seeking, and the justification for disciplinary actions against false speech. The author emphasizes the complexity of balancing freedom of expression with the responsibility to uphold academic integrity and prevent harm caused by false information. Read the full post here.

Denisa Skládalová undertakes an examination of the strategic partnership between the European Union and Namibia regarding sustainable raw materials and renewable hydrogen. Skládalová asserts that partnerships such as this one call for a legal framework that is created, interpreted, and applied with awareness of ‘green colonialism,’ making sure that the partnership actually benefits Namibia, as it claims to. Read the full post here.

Charlie JP Bennett explores the recent concerns regarding the deployment of a nuclear-based weapon designed to eliminate enemy satellites. Bennett clarifies the basics of the legal framework governing nuclear weapons in space, provides a brief history of this framework, and address how this interacts with contemporary space-based legal challenges, including issues of sustainability. Read the full post here.

Angelina Shchukina addresses possible solutions to the challenges that Ethiopia faces as a land-locked state based on international law. Following Ethiopia’s recent negotiations on access to the sea, including with the self-proclaimed Republic of Somaliland, the author highlights several options that may help overcome deadlocks the negotiations provided that a decision of a competent judicial organ is respected by the parties concerned. Read the full post here.

Frederick Cowell discusses the coordinated withdrawal of Burkina Faso, Mali, and Niger from the Economic Community of West African States (ECOWAS) and the legal implications surrounding their sudden withdrawal. The author examines the application of withdrawal clauses in international treaties, particularly focusing on the violations of ECOWAS protocols and the potential consequences of the withdrawal on regional stability and international law. Further, Cowell explores arguments related to breaches of obligations by ECOWAS and considerations regarding changes in circumstances as justifications for immediate withdrawal, shedding light on the complexities of regional governance and international relations in West Africa. Read the full post here.

Episode 24 of EJIL: The Podcast! – is now out. Listen here.

All recent Events and Announcements can be found here.

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

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