December 19, 2021

Two Weeks in Review, 6 – 19 December 2021

Written by Gail Lythgoe

Rebecca Barber discusses the difference between recognition and determining the legal status of governments in light of the UN General Assembly’s credentials process and the effect of UNGA resolutions on matters of government legitimacy. Barber argues that the recent problems in relation to Afghanistan and Myanmar, where the Credentials Committee unhelpfully recommended to the UNGA that it defer its decision, demonstrates that there are times when a UNGA resolution would help ensure greater consistency and coherence in the international response to these situations.

Iryna Bogdanova and María Vásquez Callo-Müller consider the use of unilateral cyber sanctions, problems that results because of a lack of binding norms regulating conduct in cyberspace, the legality of unilateral cyber sanctions and whether these unilateral sanctions are contributing to the formulation of rules on responsible behaviour in cyberspace. Read more here.

Claire Lougarre and A.M. Viens discuss the role of international human rights law, and in particular the right to health, in the face the “hidden pandemic” of antimicrobial resistance. They argue that the silence of IHRL on this issue and that human rights treaties ‘pull States parties in different directions’ will affect how states understand, comply, and safeguard the right to health.

Alec Stone Sweet, Wayne Sandholtz and Mads Andenas responded to Helfer and Voeten’s reply to their EJIL 32-3 article (Stone Sweet, Sandholtz, and Andenas, 2021). Read their response to the ongoing debate about whether or not there has been an increase in ‘walking back dissents’ at the ECtHR.

Javier García Olmedo justifies the Nottebohm ICJ decision which has recently come, he says, under attack after the European Commission used the ‘genuine link’ requirement to urge EU states to stop ‘“selling” EU citizenship’ via investment by citizenship (CBI) schemes, also known as “golden passport” programmes. Read more about this debate here.

Jan Eiken and David Keane offer analysis on the two procedures by which CERD ad hoc Conciliation Commissions are appointed. They show that one models bilateral conciliation between the Parties to the dispute (used in the Qatar communications) and the other models a compulsory and objective mechanism aiming to uphold the Convention (in Palestine v Israel). And yet, they argue, that is ‘seems likely that only Palestine v Israel will see the completion of the Articles 11-13 mechanism, with the publication of a report containing findings and recommendations that may refer to potential violations of the treaty.’ Read more here.

Agata Kleczkowska, commenting on the recent border crisis created by Belarus, argues that the ‘real goal of the Belarusian regime’ was ‘to deliberately exploit thousands of migrants from the Middle East, seeking for better life, and push them at the EU border, in order to undermine the security of Belarus neighbors and create chaos within the EU, as a retaliation for sanctions imposed on Belarus.’ Read more about this crisis here.

Marko Milanovic considers whether COVID passports could constitute unjustified direct or indirect discrimination against those who choose not to be vaccinated and whether a human rights body would find passports breach prohibitions of discrimination and the principle of equality. Milanovic says vaccine passports ‘more of a shove than a nudge’. Read more here.

Juan Pappier and Liz Evenson discuss the recent decision by the ICC Prosecutor, Karim Khan, to close the Court’s preliminary examination into the situation in Colombia because there is satisfaction that complementarity is working in the country. Pappier and Evenson argue that the decision raises concerns that victims’ access to justice could be undermined.

Annalisa Savaresi, Kati Kulovesi and Harro van Asselt ask whether it is now time for an ICJ Advisory Opinion on climate change, whether an Opinion could make a difference where climate diplomacy has failed, and what added value it might have. They discuss the pros and cons of an ICJ Advisory Opinion on the topic and while recognising the risks, consider that it ‘may become the avenue to at long last break the deadlock on loss and damage.’

EJIL Favourite Readings 2021

The end of year is approaching, and as has become customary on this blog, we are marking it with a series of posts on some ‘Favourite Readings’ of the year: recommendations by friends of EJIL that celebrate books, the process of reading, and the influence reading has on us all.

As in previous ‘Favourite Readings’ symposia, we have sought to curb neither their enthusiasm, nor the diversity of our contributors‘ recommendations. And so we are set for a week of diverse expressions of readers’ joy: some posts highlighting 10 titles, others concentrating on 2 — some focused on legal writing, some decidedly less so — some jubilant in their praise, others more restrained. These introduce us, amongst many others, to a Dutch politician possessing practical wisdom, to an Arab Israeli emigrant with multiple identities, a middle-aged professor suddenly beginning to discover the 1960s youth culture, and Sigmund Freud’s tobacconist. Prepare for a literary journey across continents and genres. There are still two more to come – from Gail Lythgoe and Jean d’Aspremont this week. You will be able to read everything in the series here.