Two Weeks in Review, 6 – 19 May 2024

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The International Court of Justice

Provisional Measures and Plausibility

Roy Schondorf explores the concept of ‘plausibility’ in the International Court of Justice (ICJ) rulings on provisional measures, particularly in the context of the South Africa v. Israel case. The author highlights the confusion and misinterpretation surrounding the Court’s use of plausibility, noting that the threshold for plausibility is very low and does not require strong evidence or a high likelihood of success on the merits. Schondorf suggests that the ICJ’s lenient standard for issuing provisional measures may lead to misuse of this procedure and potentially undermine the Court’s credibility. Read the full post here.

Marko Milanovic discusses the concept of plausibility in the ICJ’s provisional measures orders, particularly in the South Africa v. Israel and Nicaragua v. Germany cases, highlighting how the ICJ inconsistently applies and interprets this criterion. It argues that the plausibility criterion, which lacks a systematic explanation and varies with different judges, can lead to ambiguities and compromises in the Court’s decisions. The author proposes a thought experiment on how the ICJ might apply this criterion in the Legality of the Use of Force cases today, questioning the appropriate approach for the Court in factually complex disputes. Read the full post here.

Nasim Zargarinejad analyzes the procedure in the ICJ, particularly focusing on South Africa’s requests for clarification and modification of provisional measures in a case against Israel. Zargarinejad discusses the legal basis and implications of such requests, emphasizing that while the ICJ rules do not explicitly provide for clarification requests, they can be treated under the broader procedural capabilities of the Court to modify measures. The text highlights how these procedural aspects affect the implementation and compliance with the Court’s orders, essential for safeguarding the rights at stake in urgent international legal disputes. Read the full post here.

The European Court of Human Rights

Climate Cases

Gerry Liston reflects on the European Court of Human Rights’ (ECtHR) rulings in the Duarte Agostinho and KlimaSeniorinnen climate cases, analyzing how these decisions align with the aims of ensuring effective protection for vulnerable populations and addressing the relational nature of state climate policies. Liston addresses aspects of the decision of the Grand Chamber in Duarte – which dismissed the Applicants’ claim as inadmissible both because they are not within the extraterritorial jurisdiction of the Respondent States other than Portugal and on the basis that they ought to have exhausted domestic remedies in Portugal. The Court dismissed the extraterritorial jurisdiction claim in Duarte but emphasized a uniform obligation for states to mitigate climate change within their territories, aligning with the 1.5°C goal. Read the full post here.

In his analysis of the Klimaseniorinnen case, George Letsas addresses the European Court of Human Rights’ decision to grant standing to an association while denying it to individual applicants, which seems paradoxical given the prohibition on actio popularis. Letsas suggests the Court’s approach, which aims to avoid actio popularis, might be better justified by recognizing the rights of future generations as potential victims of climate change, thus allowing associations to represent them. This interpretation reconciles the apparent inconsistency by framing the case not as public interest litigation but as an advocacy for individuals (future generations) who cannot bring claims themselves. Read the full post here.

Racial Profiling

Daniel Moeckli discusses the ECtHR’s landmark judgment in the case of Wa Baile c. Suisse, where the court found that the identity check of Mohamed Wa Baile by Swiss police constituted racial profiling, violating Article 14 (prohibition of discrimination) and Article 8 (right to private life) of the European Convention on Human Rights. This decision marks a significant stance against racial profiling, suggesting potential shifts towards stronger measures against such practices in Europe. The ruling not only highlights the persistence of racial profiling as a systemic issue but also pushes for the adoption of international recommendations and more stringent national measures to combat discriminatory police practices. Read the full post here.

European Union Law and Policies

International Trade Law and Decolonization

Sebastian von Massow critiques the opinions of Advocate General Ćapeta at the European Court of Justice, which concerns EU trade agreements with Morocco that include the disputed territory of Western Sahara. Von Massow argues that Ćapeta’s opinions undermine international law on decolonization by questioning the recognition of the Polisario Front as the representative of the Saharawi people and accepting Morocco as the administering power. He warns that these opinions could delegitimize the Saharawi’s right to self-determination and contradict established UN practices and resolutions, potentially affecting the legal coherence of decolonization laws within EU foreign policy. Read the full post here.

Kosovo and International Organizations

Andreas Zimmermann explores Kosovo’s potential membership in the Council of Europe (CoE) amid ongoing debates about its statehood since declaring independence in 2008. Despite a recommendation from the Parliamentary Assembly for Kosovo’s admission, a final decision by the CoE’s Committee of Ministers remains uncertain due to some member states’ non-recognition of Kosovo. Zimmermann suggests an alternative path of associate membership for Kosovo, similar to the historical case of the Saar territory, which could bring Kosovo under the European Court of Human Rights’ jurisdiction without resolving its contentious statehood status. Read the full post here.

Israel-Gaza war

The Right to Self-defense

Geir Ulfstein offers an analysis of the legal basis and restrictions on Israel’s right to self-defense following the terrorist attack on October 7, 2023. The author explores whether international law, specifically the UN Charter and customary international law, allows Israel to use force in Gaza, considering the territory’s contested status and Israel’s previous withdrawal. Ulfstein further examines the requirements of necessity and proportionality in the exercise of self-defense, questioning whether Israel’s military operations in Gaza meet these legal criteria. Read the full post here.

Targeting

Tsvetelina van Benthem discusses targeting mistakes and other unintended engagements in armed conflict, particularly examining the explosion at Al-Ahli Hospital in Gaza. The author examines two scenarios: one involving a failed rocket launch by Palestinian Islamic Jihad (PIJ) near Al-Ahli Hospital in Gaza, and another involving a mistaken airstrike by the Israel Defense Forces (IDF) on the hospital. She analyzes these incidents through the lens of international humanitarian law, focusing on obligations such as taking precautions in attack, verifying targets, and prohibiting attacks on civilian objects, highlighting the complexities of assessing compliance with these obligations in the context of unintended engagements. Read the full post here.

Other posts

Arron N. Honniball and Pham Ngoc Minh Trang discuss the legal complexities surrounding Greenpeace’s protest against deep-sea mining activities in the NORI-D area in late 2023. The authors focus on whether the Netherlands, as the flag State of Greenpeace’s vessel, has the right under international law to authorize protests at sea, in conjunction with the freedom of navigation, against activities governed by the International Seabed Authority (ISA). The authors argue that while the ISA has competence over activities in the Area, it must also respect the flag State’s rights to peaceful protest, provided these protests are conducted with due regard to safety, laws, and the rights of other states. Read the full post here.

Marko Milanovic provides observations on the use of citation metrics in evaluating the quality of international law scholarship, particularly in light of a recent study by Oona Hathaway and John Bowers. Milanovic contends that the HeinOnline database used in their study is fundamentally biased towards US-based, student-run journals, leading to skewed results. He highlights several reasons for this bias: Hein’s classification of international law articles includes US constitutional/foreign relations law, comprehensive coverage of US journals over non-US ones, reliance on US Bluebook citation formats, and exclusion of book citations. These factors, Milanovic argues, make the Hein dataset unrepresentative of global international law scholarship, thus questioning the reliability of any findings based on it. He calls for cautious use of metrics and recognition of their inherent biases, particularly when drawn from sources like HeinOnline. Read the full post here.

Jack Kenny discusses the emerging argument that international law imposes a general obligation on states to exercise due diligence to prevent their territory from being used for activities that harm other states, particularly in the context of cyberspace. It critically examines the basis of this argument, primarily derived from the ICJ’s Corfu Channel judgment, and highlights significant disagreements among states regarding the existence and scope of such obligations. The text concludes that while specific due diligence obligations exist in certain contexts, there is insufficient evidence to support a universally applicable general due diligence obligation in international law. Read the full post here.

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