Two Weeks in Review, 28 August – 10 September 2023

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customary law of armed conflict symposium 

In their post titled ‘Identifying Customary LOAC in Practice,’ Roni Katzir and Hadar David put forth three primary observations that pertain to crucial methodological aspects related to the identification of Customary International Law (CIL) that are often encountered when practicing the Law of Armed Conflict (LOAC). In the realm of theory and practice, the authors present the factors that should be considered in the context of the two-element approach. Subsequently, the authors discuss the application of existing CIL to new domains of warfare and the interpretation prospects of CIL.

See the full post here.

In his post titled ‘A Judgment Leaking from the European Court: The Case of Kovačević v Bosnia and Herzegovina,’ Igor Popović discusses the apparent leak  in the aforementioned case. The author asserts that the judgment was clearly leaked from within the court. Further, he notes two significant consequences of the leak. The first, regards the imposition of sanctions on the responsible individual, and the second, relates to the impact the leak may have on the final outcome of the case if referred to the grand chamber. He concludes that: 

‘The judgment in Kovačević case is truly important for Bosnia and Herzegovina. It requires changes at the core of the state’s apparatus – its electoral and political system. But what precedes the merits is the fact that the judgment leaked. It is clear that there was a breach of the ECtHR’s Rules. There is no doubt that this is an unprecedented serious incident, and the Court should investigate it. The investigation might reveal different things, including the court’s partiality, which could be essential for the final outcome of the case.’

Read the full post here

More posts 

Omar Hammady provides an analysis of the current crisis in Niger and the legality of the ECOWAS Planned Military Intervention. The author focuses on claims of abstract treaty-based consent, ad hoc consent, and elaborates on the consequences of the aforementioned threat to use force. Hammady concludes that the proposed options to use force against Niger without prior authorization from the Security Council would be illegal:

‘It follows that Niger’s coup which can and should be overturned, should be addressed by peaceful means. Growing demands to prevent yet another war in the Sahel region are being voiced by the region’s politicians, intellectuals and activists, but also by international experts. A military intervention risks disastrous consequences for the Sahel States and population, with dramatic humanitarian consequences and a foreseeable spill-over effect for Europe. This can only benefit terrorist groups and criminal networks.’

Read the full post here.

In their post titled ‘Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III,’ Joshua Paine and Elizabeth Sheargold discuss the ‘Draft Provisions on Procedural and Cross-Cutting Issues,’ which will be discussed by UNCITRAL Working Group III in its next session in October 2023. The authors focus on Draft Provision 12 which contains a standard ‘right to regulate’ clause, often found in International Investment Agreements (IIA), along with two novel paragraphs aimed at responding to concerns about regulatory chill. Paine and Sheargold assert that even if Draft Provision 12 is not widely adopted in its current form, it sparked an important debate for wider ongoing discussions of IIA reform. Additionally, the authors note Draft Provision 12 may serve an important political purpose by showing that the Working Group III process is addressing the concerns of those States who believe that the Working Group’s mandate should extend beyond strictly procedural issues.

Read the full post here.

Jack Sproson and Tsvetelina van Benthem discuss three legal questions arising from reported practices of enforced disappearance in Russian-occupied Ukrainian territories. The authors examine the various definitions of enforced disappearance as well as aspects of it such as the length of the disappearance and the denial of deprivation of liberty or the refusal to provide information on the whereabouts or fate of the disappeared individual. Sproson and van Benthem conclude that:

‘As the Russian occupation of Ukraine rolls on, testimonies increasingly demonstrate a propensity to engage in practices which may be qualified as enforced disappearance. If proven, such practices will amount to serious and gross violations of the human rights of those disappeared and their families. Today, as we recognise the continuing disturbing trend of enforced disappearance around the world, it is more important than ever to pursue all available accountability avenues to ensure justice for the disappeared and their close ones, and to signal the international community’s commitment to ending this abhorrent practice.’

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.

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