Two Weeks in Review, 4 – 17 January 2021

Brian McGarry reflects on the legacy of the PCIJ after the centenary of the adoption of the PCIJ Statute in December 2020. McGarry examines the impact of the PCIJ on the practice, procedures, and institutional design of international courts and tribunals today.

Gian Luca Burci analyses the case against the Pan-American Health Organization (PAHO) (Rodriguez v. PAHO) and the findings of the District Court for the District of Columbia, which upheld the immunity of the IFC in February 2020, but partially denied PAHO immunities in its opinion and order of 9 November 2020. The lawsuit arises from PAHO’s involvement in the “Mais Medicos” programme whereby Cuba supplied a large number of doctors to Brazil but which became politically controversial for Brazil and was terminated in 2018. 

Dapo Akande, Antonio Coco and Talita de Souza Dias challenge two assumptions that are often made in debates about the extent to which existing international law apply to cyberspace. The first assumption is that existing international law can only apply in cyberspace if substantiated by sufficient evidence of domain-specific (i.e. cyber domain) state practice and opinio juris. The second assumption made that they dissect is that standards of conduct which reflect existing international obligations under general international law have been framed, in the context of cyberspace, as ‘voluntary, non-binding, norms of responsible state behaviour’. 

Myrto Stavridi examines the ECtHR inter-state case Slovenia v. Croatia which found a direct correlation between Arts. 33 and 34 of the ECHR and meant the Court lacked jurisdiction to examine the inter-State application in question. The entity the amount awarded as just satisfaction would eventually benefit could not be regarded as a “non-governmental organization” within the meaning of Art. 34. The Court made clear that an inter-State application cannot be used to bypass the requirements of Art. 34. 

Joshua Paine addresses an Award of 21 December 2020 in Cairn Energy v India, a case under the UK–India BIT, and focuses on two key aspects of the Award: first, how the Tribunal understood its role, in assessing whether India’s taxation measures complied with the BIT given that issues related to Indian taxation and constitutional law lay at the heart of the dispute; and second, the Tribunal’s use of various ‘general principles of law’ to establish the FET standard.

Ríán Derrig comments on the recent Rockall incident where a Marine Scotland patrol boat stopped and boarded an Irish fishing trawler, discusses the core of the current dispute between Ireland and the UK, and argues that Ireland should not foreclose the possibility of making a territorial claim over Rockall. 

Marko Milanovic notes some important elements of the ECtHR Grand Chamber admissibility decision in the interstate claim brought by Ukraine against Russia regarding systematic human rights violations allegedly committed by the latter in Crimea. It was not a ‘total win for Ukraine’, for the Court tried (but according to Milanovic only partially succeeded) in avoiding pronouncement on sovereignty over Crimea. Milanovic discusses the issue of sovereignty over Crimea, as well as: how the Court dealt with the issue of jurisdiction in the sense of ECHR Article 1 and its extraterritorial applicability; the Court’s approach to evidence; and the decision’s ultimate findings on the prima facie existence of human rights violations by Russia.