Two weeks in Review, 5 December – 18 December

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MH17 Dutch Judgment

In his post, ‘The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine’, Lachezar Yanev examines the jurisdiction criteria required of the Dutch Prosecutor: (i) whether the Dutch Criminal Code establishes jurisdiction over the conduct in question; (ii) whether international law provides any limitations, such as immunities, to prosecution; and (iii) whether serious procedural defects in the investigation and prosecution can be identified which could extinguish the Prosecutor’s right to prosecute this case. Yanev focuses on the second criterion, the court’s application of IHL. Mainly, he notes the Court’s conclusion that the downing of MH17 took place in the context of an international armed conflict between Ukraine and Russia. Meanwhile, the separatist armed forces, which Russia used to wage the conflict, were not entitled to combatant immunity under IHL.

See his full analysis here.

Joëlle Trampert explores possible implications of the Dutch MH17 Judgment for the Netherlands’ ongoing inter-state case before the ECtHR. Trampert notes that combatant immunity only applies to those who have the right to participate directly in the hostilities between States. Consequently, this brought the court to examine the role of the Russian Federation in the conflict with Ukraine. Specifically, considering the two courts’ analysis of attribution under the different responsibility tests. She concludes that:

‘Although the judgment does not concern the international responsibility of the Russian Federation, the Dutch court said more than many anticipated. Applying the ICTY’s ‘overall control’ test, it attributed the conduct of the DPR to Russia. Before embarking on any attribution test, the ECtHR will have to deal with the thorny issue of Russia’s extraterritorial jurisdiction. It is virtually unimaginable that the Grand Chamber will declare the MH17 case inadmissible on this point. But it is difficult to predict how the Court will proceed. Will it establish Russia’s jurisdiction on the basis of the spatial model and apply the ‘under the decisive influence’ test developed in the MRT cases, which the Dutch court may have hinted towards in the MH17 judgment? Or will it (also) expand the personal model or even adopt a functional model, following Carter? […]’ 

See the full post here

ICJ Silala Case 

On December 1st, 2022, the International Court of Justice issued its decision on the dispute between Chile and Bolivia regarding the status and use of the Waters of the Silala River system (“the Silala case”). 

In their post, ‘The Silala Case: Was Justice Served?’, Benjamin Salas Kantor and Elisa Zavala examine the court’s Interpretation of the Parties’ (changing) Submissions, and the legal effects of the agreements and convergence the court noted in its decision. The two argue that the court’s recognition of the agreements and convergence are to the benefit of the parties: 

‘It is unhelpful for both parties that the Court didn’t find, as it did in Nuclear Tests, that the parties’ dispute disappeared because the “object of the claim ha[d] been achieved” through these “agreements”. Instead, it found that the claim no longer had an object (see Charlesworth’s Declaration, para. 13-14). The latter makes it harder to find, within the Decision, a positive recognition by the Court that the “agreements” gave rise to treaty-based obligations or unilateral acts, because if they did, the object of the claim would have been achieved and not lost by means of a new legal undertaking.’

Read their full analysis here

Francesco Sindico, Laura Movilla Pateiro, and Gabriel Eckstein reflect on the ICJ Decision in the Silala case. The three raise unique questions arising from the proceedings, both from the perspective of general international law and international water law. First, regarding the consequence of new evidence and the Parties’ evolving positions that bring them closer to an agreement on the substance of a claim, should the Court issue a declaratory judgment or, declare a claim void of object, thus requiring no decision? Second, was the clarification on the procedural obligation to notify and consult under customary international law done in a progressive or regressive manner? Further, to what extent riparians must cooperate to fulfill their obligations to notify and consult, in regard to the application of the equitable and reasonable use principle? 

UK Decision on Referendums

On November 23, 2022, the UK Supreme Court ruled that Scotland’s government cannot hold a second referendum on whether to secede from the United Kingdom, since it did not receive the approval of the British parliament. The unanimous decision generated much discussion.

In the two parts of his post, ‘The UK Supreme Court Reference on a Referendum for Scotland and the Right to Constitutional Self-determination’, Marc Weller offers his analysis of the decision. In part one, Weller examines the introduction of the reference to the UK Supreme Court. Specifically, how the court came to rule on this matter and if it should have at all. This question rose in part since the reference related to a bill that had not yet been adopted by the Scottish parliament. 

In part two, Weller focuses on the court’s ruling to deny the application of self-determination to Scotland. Weller explains that while it is true that Scotland is not a colony in the traditional sense, the Court notes that the ruling overlooks the doctrine of constitutional self-determination. Mainly, since the issue of constitutional self-determination was addressed in an ‘incidental and somewhat cursory way’ resulting in a highly condensed and brief treatment by the Court. Weller notes that this treatment might be misunderstood as denying the application of the right of self-determination to Scotland altogether. He concludes that: 

‘In reality, of course, the Court has merely found that Scotland is not a classical colony. Hence, the classical right of unilateral secession does not apply. Scotland cannot simply declare independence and leave if it wishes to obtain the benefit of a legally privileged secession in international law as a constitutional self-determination entity—in fact a practical necessity given Scotland’s hope to achieve widespread recognition and EU membership as an independent state. But if it enjoys constitutional self-determination, Scotland should be entitled to assess the will of its population at reasonable intervals. And if there is a clear majority in favour of independence, both sides would be obliged to negotiate the divorce in good faith.’

Read part I here, and part II, here.

In his post, ‘The UK Supreme Court in the Scottish case: revitalising the doctrine of remedial secession’, Kushtrim Istrefi offers his analysis of the decision at hand. Istrefi notes that by deliberately endorsing the Quebec judgment, the Court contributed to the development of self-determination apart from the colonial context. Istrefi contends that arguments claiming this approach allows for secessionist claims and the abuse of the right to self-determination, are unpersuasive and counter-intuitive. Further, he notes The Quebec-type judgments prove that the right to external self-determination applies only in situations where evidence of gross human rights violations exists. This approach is seconded by the UK Supreme Court in the case of the Scottish referendum, and would equally exclude claims of Catalonia and undoubtedly dismiss abusive claims of the Russian-controlled territories in Ukraine. He concludes that although legal standards will not prevent abuse; abuses or violations of international law should not prevent further clarification and development of the right to self-determination as a principle that prevents oppression by a parent state.

Read his full analysis here.

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