Two Weeks in Review, 5 June – 18 June 2023

New Issue of EJIL (Vol. 34 (2023) No. 1)

The latest issue of the European Journal of International Law  (Vol. 34 (2023) No. 1) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

• Read the table of contents
• Read the Editorial by EJIL Editors in Chief Joseph Weiler and Sarah Nouwen
• Read the Editorial by Associate Editor Wanshu Cong
• Read the Editorial by EJIL Review Editor Christian Tams and Gail Lythgoe

Russia-Ukraine conflict

Marko Milanovic offers preliminary thoughts on the destruction of the Nova Kakhovka dam and the legal framework of international humanitarian law regarding such attacks. Milanovic examines the question of attribution, the existence of an ‘attack’ under IHL, distinction, proportionality, and the attack under AP I, Art. 56 on installations containing dangerous forces. He concludes that:

What I can say now is that, if it turns out that the dam was destroyed by Russian forces deliberately and that they did so without pursuing any definite military advantage and did so knowing of the harm that can befall the civilian population, the dam’s destruction could amount to a war crime or even a crime against humanity. Note that an action can constitute a crime against humanity even if it is not an atack in the IHL sense of the term (point (2) above). All this depends not just on the extent of harm to civilians, but on the intent of the relevant actors, which we cannot know with certainty at this time.

Read the full post here. 

James Patrick Sexton examines the enforcement of violations of financial sanctions on Russia as a prospect for securing funds for the reconstruction of Ukraine. Sexton considers the United States and European Union’s approaches to the prosecution of sanctions violations as an alternative or additional approach to securing the funds. The author asserts that while proceeds gathered from sanction enforcement will not suffice to fund the rebuilding of Ukraine, they are not inconsequential. Further, if sanction violation prosecutions are based on international law-compliant sanctions and accompanied by strict procedural safeguards the US, EU, and other states will be able to contribute further legitimate funds to Ukraine.

Read the full post here.

In their post, ‘A Hot Potato: The ICJ’s Order on the Admissibility of 32 Declarations of Intervention in Ukraine v. Russia,’ Juliette Mcintyre, Kyra Wigard and Ori Pomson discuss some of the key issues of the order in the Ukraine v. Russia Genocide Convention case. The authors conclude that:

This Order brings some much-needed clarity to the Court’s limited Article 63 jurisprudence. It also reveals that the Court is taking this case – and the fact that an unprecedented number of States wish to intervene in it – very seriously. This is illustrated by the concerns voiced by Judges in their individual opinions, whether they focus on equality of the parties, good administration of justice, or the possible strain on the Court’s time and resources. The Court may need to continue to demonstrate its capacity for procedural creativity as the preliminary objections proceedings advance.

Read the full post here.

International Criminal Law

Bruno de Oliveira Biazatti and Ezéchiel Amani discuss the recently adopted Ljubljana – The Hague Convention. The treaty aims to regulate in detail mutual legal assistance and extradition for the domestic investigation and prosecution of core international crimes such as genocide, crimes against humanity, war crimes, and other international crimes. The authors address four elements of the Convention in terms of evaluating its purpose. First, the Convention’s broad scope on issues such as the definition of the crimes, domestic criminalization, the establishment of national jurisdiction, victims’ rights, and others. Second, the obligation set in the treaty to establish national jurisdiction over the crimes to which the Convention applies. Third, data protection in light of the obligation to carry out international transfers of data in the cooperation channels established by the Convention. Forth, the obligation of the state to take appropriate measures within its means to provide effective protection from potential retaliation or intimidation of victims, witnesses, experts, and other persons. 

Read the full post here.

Matt Halling explores the unique interaction between international law and artificial intelligence, particularly, large language models (LLMs). Halling notes that the potential of LLMs remains largely untapped in international criminal law. He asserts that LLMs may revolutionize international criminal law due to its unique features. The author concludes that:

Whatever limits to their present use, the potential of LLMs for ICL is unmistakeable. They are also evolving rapidly, making prediction of when or how they will gain widespread adoption within the field difficult. But ICL would be well-served to explore how to maximise these tools and ensure their responsible use.

Read the full post here.

Yohannes Eneyew Ayalew examines the entry into force of the African Union’s Malabo Convention on cyber security and personal data protection and its implication on data privacy in Africa. The convention is meant to provide general rules and principles on various issues, including personal data protection and electronic commerce along with cybersecurity and cybercrimes in the continent. Eneyew Ayalew concludes that:

In sum, the coming into force of the Convention is a huge milestone to realize data privacy in the digital age in Africa. The Convention will have a far-reaching effect when African countries commence digital trade within and beyond Africa. However, as a framework treaty, it lacks detailed rules, and procedures on data processing and protection, in turn, make it a lackluster regional treaty. As such, the African Union should enact enabling legislation that clarifies general statutory provisions. Given Africa’s diverse socio-cultural contexts, it should be appropriate and timely to reflect on the conception of data privacy. In doing so, African Union member States should consider African-approach to (data) privacy seriously.

Read the full post here.

More posts

Ming-Sung Kuo explores the Principle of Non-Use of Force and the ‘Peacefully Established Status of Territories’ in the context of Taiwan-China relations. Kuo offers his analysis of the G7 Hiroshima Leaders’ Communiqué’s statement opposing unilateral attempts to change ‘the peacefully established status of territories by force or coercion anywhere in the world and reaffirm … that the acquisition of territory by force is prohibited.’ The author argues that despite the political nature of the declaration, it nevertheless suggests a sensible and balanced normative foundation for the maintenance of peace and stability across the Taiwan Strait in terms of international law. 

Read the full post here.

Eoin Jackson explores a claim submitted in June 2022 to the European Court of Human Rights (ECHR) by a group of young people. The group is alleging that their rights under Article 2 and Article 8 of the European Convention are being violated by states’ continued compliance with the controversial Energy Charter Treaty. Jackson offers a potential pathway to success for this case, and in particular examines what effect, if any, the case could have on the continued legitimacy of the sunset clause of the ECT, which binds member states to the provisions of the treaty for 20 years after formal withdrawal. The author finds that this case represents a significant expansion of how the ECHR conceives of its role in rights-based jurisprudence. 

The European Journal of International Law has new advanced articles and advanced reviews available to read online.