Two Weeks in Review, 27 September – 10 October 2021

Emilie McDonnell takes a look at practices of externalised migration control, especially those aimed at containing migrants and would-be migrants in states of transit and origin, and argues the relevance of the right to leave a country, found in for example Article 12(2) of the ICCPR, has not been fully realised – indeed, practices preventing migrants from leaving states may interfere with and violate this right.

Christopher Tan offers some legal analysis on the complicated legal and political relationships of Jersey (one of three British Crown Dependencies), the UK, and the EU in light of Brexit and tensions over fishing rights. Tan considers whether Jersey could renegotiate the Trade and Co-operation Agreement with the EU given the Crown Dependency has agreed its own tax and investment treaties. 

Niko Pavlopoulos considers how international courts and tribunals resolve controversies over the identity of state representatives. After outlining the different approaches that have been adopted and whether it is preferable to adopt objective legal criteria, Pavlopoulos concludes that ‘there is perhaps no singular correct approach to the resolution of all representation controversies’ because there may be good reason for courts to adopt different approaches. 

Marko Milanovic comments on two recent examples of targeted killings – a drone strike in Kabul that killed a US NGO aid worker and 7 children and the assassination by Israeli agents of an Iranian scientist – and applies the law on the use of force, international humanitarian law and international human rights law to these two cases. Milanovic concludes that ‘the erroneous US drone strike in Afghanistan most probably violated international law (depending on the resolution of certain questions of fact), and Israel’s killing of Mr Fakhrizadeh very definitely did so (we know all the facts we need to know).’

The Oxford Statement on International Law Protections in Cyberspace: The Regulation of Ransomware Operations

The fifth Oxford Statement on International Law Protections in Cyberspace was published and opened for signature this week.

Previous Oxford Statements on International Law Protections in Cyberspace:

• The Oxford Statement on International Law Protections Against Cyber Operations Targeting the Health Care Sector
• The Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research
• The Oxford Statement on International Law Protections Against Foreign Electoral Interference Through Digital Means
• The Oxford Statement on The Regulation of Information Operations and Activities

Michael A Becker in a two part post offered his analysis of the recent US case The Gambia v Facebook which saw The Gambia seeking further evidence to support its case against Myanmar at the ICJ. In Part I, Becker gives an overview of the case, explains the complex legal and technical issues, and identifies some problematic aspects of the decision. In Part II, Becker looks at further issues, including whether private user-to-user messages are included in the court’s order. Becker also notes that the order refers to the genocide of the Rohingya as an established fact, which is interesting given whether genocide has taken place is the question before the ICJ. Becker concludes that ‘The Gambia v Facebook decision underscores the need for a better legislative framework—in the United States and elsewhere—to enable social media companies to meet the competing requirements of privacy and data protection, content moderation and free expression, and cooperation with legal accountability initiatives’.

Alain Pellet reviews the International Law Commission Exhibition Book, which is based on the photo exhibition organised to mark the 70th anniversary of the Commission. In his review, the former ILC Chair offers some interesting reflections on the Commission and its work, as well as on the visual storytelling of the development of international law. 

Diane Desierto considers the big question facing states today concerning climate change which is ‘who has the authority to decide what climate action, in particular, should be taken.’ Reflecting on the term ‘just transition’, Desierto examines the nationally determined contributions (NDCs) of states submitted pursuant to the 2015 Paris Agreement and notes the absence human rights evaluation, monitoring, and compliance in setting the NDCs.

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.