Two Weeks in Review, 31 January – 13 February 2022

Freya Baetens and Marco Bronckers take a closer look at the EU Anti-Coercion Instrument, examining the definition of economic coercion, whether any economic coercion violates international law or only instances of grave economic coercion, and if so, whether, as the Instrument provides, the EU is able to redress a violation without regard to WTO law. Baetens and Bronckers conclude by saying:

Excluding countermeasures against foreign coercion from [the WTO] would also be in keeping with the WTO’s diminishing role overall. The world is turning towards a more unilateral economic order…and the EU needs to be adequately equipped to handle its challenges.

Read further analysis by Baetens and Broncker here. 

Klentiana Mahmutaj examines the Morocco-Nigeria BIT 2016 and argues that the BIT may be a ‘trailblazer’ because it weaves sustainable development into its substantive provisions and Preamble, thus transforming sustainable development from soft law into a hard legal obligation. Mahmutaj looks at how the BIT achieves this through its definition of investment and its provision on the right to regulate.

Arianna Rafiq considers recent attempts by the victims of the 9/11 terrorist attacks to attach Afghanistan’s foreign exchange reserve, which amounts to around USD 10 billion in US treasury bonds, gold offshore and other investments. Rafiq addresses the question of whether acts undertaken by Al Qaeda/the Taliban can be attributed to the State of Afghanistan now the Taliban have become the government. Meanwhile, the Taliban government want access to the funds, given the afghani lost more than 25% of its value against the dollar and the country on the brink of famine. Read more here. 

Mary Ellen O’Connell examines strategies to end the Russia-Ukraine conflict, including using the Organization for Security and Cooperation in Europe (OSCE) as a neutral venue for talks. O’Connell also argues that so far military measures and sanctions have been ineffective, and that economic and cyber measures create only further instability. She notes the very real risk that a descent into war will threaten the international law community’s ability to address other pressing issues such as climate change to human rights abuses, and calls for a rebuilding of the rules and institutions of peace.

Itamar Mann argues that the European Court of Human Rights has failed to provide effective remedies for the victims of drift backs and to end the practices that may constitute violations of the right to life and the prohibition of torture and inhuman and degrading treatment. The applicants of a recent case, A v Greece, have now been drifted back, and their lawyers do not know where they are nor what has happened to them. Mann maintains that decisions on interim measures do not take into account the urgency in which they are submitted, and that it takes too long for a migration case to be decided by the Court given patterns of border enforcement and border violence change much more rapidly. Read more here.

Julia Kapelańska-Pręgowska takes a closer look at the positive obligations of States to fight epidemic diseases under international human rights law and their accountability for not protecting the life and health of individuals in their jurisdiction. Using Poland as an example, Kapelańska-Pręgowska considers what the right to health entails and whether Poland is meeting its positive obligations under IHRL. 

Nurlan Mustafayev considers the use of ballistic missiles in the ’44-day war’ between Armenia and Azerbaijan in late 2020 and offers analysis on the legality of ballistic missile strikes on cities under international law, arguing that they are inherently indiscriminate and collateral damage is excessive. Mustafayev argues that the UN Security Council should establish a fact-finding mission or refer the situation to the International Criminal Court. 

Marc Weller addresses the question that the International Court of Justice will soon have to face: who is proper representative of Myanmar before the ICJ in the case of The Gambia v. Myanmar. The National Unity Government of the Union of Myanmar (NUG) – the ‘government in exile’ after being ousted in the 2021 military coup – recently withdrew all preliminary objections in the case. Yet the military administration, exercising effective power (applying Tinocco), argues it is the proper representative and wants to press ahead with the objections to the jurisdiction of the Court. Hearings on these objections had been scheduled for 21^st to the 28^th February 2022, meaning that the question of proper representation is immediately relevant to the Court. Read Weller’s analysis here. 

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. These advance articles include a ‘Transatlantic Symposium on the Restatement (Fourth)‘ and a debate between Dapo Akande and Antonios Tzanakopoulos, on the one side, and Tom Ruys and Felipe Rodríguez Silvestre, on the other, of the legality of the use of force in self-defence to recover occupied territory. The EJIL Debate expands on a debate had on this blog and Just Security in November 2020:

• Use of Force in Self-Defence to Recover Occupied Territory: When Is It Permissible?, by Dapo Akande and Antonios Tzanakopoulos
• The Nagorno-Karabakh Conflict and the Exercise of “Self-Defense” to Recover Occupied Land, by Tom Ruys and Felipe Rodríguez Silvestre
• At Daggers Drawn: International Legal Issues Surrounding the Conflict in and around Nagorno-Karabakh, by Bernhard Knoll-Tudor and Daniel Mueller