Two Weeks in Review, 31 July – 13 August 2023

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Konstantin Skoblik explores the consequences of Russia’s withdrawal from the European Convention of Human Rights (ECHR). Skoblik outlines several preliminary findings on the erosion of human rights principles within the Russian criminal justice system. The author contends that, contrary to statements made by various state officials, the aforementioned withdrawal negatively impacted human rights in Russia. For instance, the author suggests that Russia’s exit from the Convention system accelerated its transition from a rights-based approach to that of social conditions in the context of the criminal justice system.

Read the full analysis here. 

Vito De Lucia explores the recent judgment of the International Court of Justice on the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia). Focussing on opinio juris and the court’s past practice, De Lucia finds that: 

“It may well be that the conclusion the Court arrived at, that States cannot lawfully claim entitlements to an extended continental shelf that extends to within 200 nautical miles from the baselines of another State, is a sound policy decision. That, in turn, may make it a good legal decision in terms of sensing the realities in which such decision would fall. Indeed, Colombia observed in its pleadings (p. 16) how “Nicaragua’s claim has worldwide implications of the most disturbing kind”. This consideration may well have been lurking in the back of the Court’s “mind”. However, the unsatisfactory reasoning on the question of opinio juris makes the judgement at the same time a poor legal decision, especially considering all the questions it raises, including the potential implications of having created, with too much nonchalance, a “third constraint line to the entitlement to a continental shelf beyond 200 nm”, as Woker observes, and having upset the “religiously” consolidated doctrine of the single continental shelf. However, it is perhaps not the first time that the Court, affected by “methodological indeterminacy”, pulls “fantastical opinio juris” out of its hat, and leave the audience in awe.”

Read the full post here. 

In their analysis, Malcolm D. Evans and Nicholas A. Ioannides provide commentary on the 2023 Nicaragua v. Colombia case and its consequential implications. The authors underscore that the Court took the correct approach when it determined that under customary international law, a State may not assert continental shelf rights to areas that lie within 200 nm of the baselines of another State. And further support the Court’s determination that the basis of entitlement to a continental shelf within 200 nm is based on distance, whereas the basis for entitlement to a continental shelf beyond 200 nm is based on natural prolongation. Thus, asserting that a continental shelf based on natural prolongation takes second place to a continental shelf based on distance.

See the full analysis here. 

In his post titled “A future ‘EU Space Law’: A few Constitutional Considerations,” Charlie JP Bennett examines the new EU Space Strategy on Defence and Security, released in March 2023. Within this context, Bennett identifies two potential challenges associated with the envisaged provisions constituting an ‘EU Space law,’ namely issues of competence and legal autonomy. The author asserts that the provisions demonstrate a certain level of disregard for the inherent specific limitations of the European Union’s ability to act. In essence, the author notes there is also an upper limit to de-fragmentation of the current legal regime, to the detriment of industrial development. Bennett finds that this in turn, may lead to reliance upon less-specific legal bases that may also produce uncertainty in the EU’s relationship with the European Space Agency. Bennett concludes that these factors may ultimately hinder European space industry development and that:

“In the absence of broader, specific space-oriented competences – that account for dual-use systems – that allow this, competence creep into both the competences of the Member States and perhaps ESA seem both possible and likely to occur. The alternative option is for the EU to do less than it must to Europe to stay internationally competitive in space into the far future – at the moment, it does not even have independent access to space. Thus, if a competence creep for the EU is coming, it should be welcomed unless a legal and political workaround to above issues is possible.”

See the full post here.

Weihang Zhou explores the possible justification for sanctions imposed on private investors by the US and UK in the context of the Russian-Ukrainian Conflict. Zhou identifies two potential theoretical objections to this practice rooted in the principals of state responsibility. First, the use of countermeasures against Russia by non-injured states. Second, countermeasures are used to target Russian private investors, instead of the state or its assets. These objections raise questions surrounding the legality and appropriateness of such sanctions. The author concludes that:

“A year into the Russian invasion of Ukraine has witnessed a phalanx of sanctions from States other than the injured State, including the US and the UK, on Russia and its private investors. Unfortunate as that event is, these measures undeniably feed valuable data into the laboratory of international lawyers for evaluating the current international legal system. It is interesting to examine how the justification of countermeasures in the law of international responsibility pans out in the context of sanctioning private investors from a wrongdoing State. As we have explored in the foregoing sections, there are two potential theoretical challenges to invoke this justification, but they are not insurmountable.”

Read the full post here.

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