Two Weeks in Review, 4 July – 17 July

Nurlan Mustafayev explores effective control in Azerbaijan’s Karabakh region. He focuses on whether Armenia and Russia bear responsibility for international law violations by virtue of their effective control under the European Convention on Human Rights. He concludes that ‘despite the territorial reduction of Armenia’s control over the previously occupied territories of Azerbaijan, it continues to exercise effective control over parts of Karabakh for the purposes of the European Convention and international law.’ Read more here. 

Andrea Maria Pelliconi examines the human rights concerns deriving from the latest MoU between Turkey, Finland and Sweden. She asserts that the text lacks clarity and the potential implications under the profiles of criminal law and judicial cooperation are not foreseeable. Further, it does not mention minimum human rights standards, the proportionality test and the balance of interests. Read Pelliconi’s post here. 

Yurika Ishii offers her analysis of the ICJ judgment in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) case. The Court found that Colombia violated its obligations by interfering with fishing and marine scientific research activities of Nicaraguan vessels in Nicaragua’s EEZ, and by conducting fishing activities by Columbia’s vessels in Nicaragua’s EEZ. She concludes that:

‘While the present case decided in favour of Nicaragua, and it would protect the coastal State’s legitimate interests, it may have opened a way for the user State because it did not presume the priority of the coastal State’s rights in the latter’s EEZ […] Furthermore, it clarified (1) the nature of the sovereign rights in the EEZ and (2) the conditions for the violation of Article 56(1), which is the control of the actors and the enforcement of its laws and policies in undertaking the activities that are reserved to the coastal State’s authority. It would have implications in other areas, including the South China Sea, East China Sea, Mediterranean Sea and the Caribbean Sea, where regional powers take provocative actions to hinder the economic activities of the coastal State.’ 

See the full post here.

Jayashree Watal analyzes the 12th WTO Ministerial Conference Decision on the TRIPS Agreement pertaining to the export/import options of COVID-19 vaccines. She concludes that the decision, on the one hand, facilitates use without the authorization of the ‘right holder’ for the export/import of the vaccines. And, on the other hand, includes provisions that are stricter, causing further legal uncertainty than the existing provisions. Furthermore, it ignores several existing provisions that are favorable for developing countries. Read more here. 

Chris Stephen discusses the UK Supreme Court decision in the Case of Basfar v Wong, which explores the limits of diplomatic immunity in a claim for breach of employment rights brought by a domestic servant. Stephen explains that:

‘the diplomat in question would not have immunity from the civil jurisdiction of the courts of the United Kingdom as such a claim falls within the “commercial activity” exception found within Article 31(1)(c) of the 1961 Vienna Convention on Diplomatic Relations (“VCDR”). According to the Court,  while employment of a domestic worker did not, in itself, ordinarily constitute the exercise of a “commercial activity” by a diplomatic agent, employment that is a form of modern slavery, whether that was forced labour, servitude or trafficking, amounts to a commercial activity practised for personal profit.’

Read Stephen’s analysis here. 

Ori Pomson examines the International Law Commission’s ongoing work on general principles of law. He focuses on whether Article 38(1)(c) of the Statute of the International Court of Justice includes general principles of law formed within the international legal system. He finds that: ‘given the serious doctrinal problems in recognizing the validity of a second category of general principles of law – those formed within the international legal system – it would be prudent for the ILC to omit recognition thereof as a valid source of international law.’ Read Pomson’s post here. 

Donatella Alessandrini following her article A Not So “New Dawn” for International Economic Law and Development: Towards a Social Reproduction Approach to GVCs’, published in the European Journal of International Law, Alessandrini engages with Bernard Hoekman’s critique. Alessandrini probes the assumptions underlying the two main counterclaims by Hoekman:

‘What he takes issue with is the power he sees the article ascribing to both International Economic Institutions (IEIs) and deep trade agreements, arguing instead that 1) IEIs, and their reports, have much less power to influence policy-making and that 2) deep trade agreements are less effective in terms of constraining states’ policy space than the article suggests. Specifically, he points out that ‘developing’ countries have not engaged in deep trade agreements and that there is little evidence the latter have limited their policy options.’

Read her full analysis here. 

Mohsen Nagheeby looks at the legality of the diversion of the Helmand (Hirmand) River by the Taliban in January 2022, stressing that the act can cause huge economic losses, degrade ecosystems, and threaten the lives of those in downstream areas dependent on its waters. Nagheeby asserts that under Articles 11 and 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to water is legally binding. Thus, Nagheeby concludes that by causing the significant transboundary damage resulting from the diversion of the river, Afghanistan did not comply with its obligation to assure the rights of individuals under international human rights law. Read more here. 

Michael Schmitt examines Canada’s position on the application of international law in cyberspace. Schmitt concludes by saying: 

‘Although I agree with most of Canada’s analysis, especially its robust discussion of sovereignty, there are points with which I disagree, such as the positions on due diligence and collective countermeasures. But States make and authoritatively interpret international law, not law professors. Therefore, even where I disagree, I find the Canadian statement to be a significant contribution to understanding how international law applies in the cyber context. Simply put, Canada has moved the discussion forward. And it continues to do so through active international engagement on the subject and its robust global capacity-building program.’

Read the post here.

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