Two Weeks in Review, 7 December – 20 December 2020

EJIL Favourite Readings 2020

Joseph Weiler kicks off the now annual symposium with his 10 Good Reads from 2020. You can read Part I and Part II now. Further selections from EJIL Board and (Associate) Editors will be coming over the next two weeks. Watch this space for some reflections on their favourite reads and thoughts about the enduring themes of this year.

Cyberspace: Israel’s perspective

We posted the transcript of the keynote speech delivered by Israeli Deputy Attorney General (International Law), Dr. Roy Schondorf, on 8 December, 2020 at the US Naval War College’s event on “Disruptive Technologies and International Law”. You can read Israel’s perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations.

This sparked a two-part comment by Michael Schmitt on ‘Israel’s Cautious Perspective on International Law in Cyberspace’. In Part I, Schmitt examines some questions of methodology, specifically the approach Israel has adopted for engaging in the complex task of determining if and how rules apply in the cyber context, as well as for its views on key aspects of sovereignty, intervention, due diligence, attribution and countermeasures. In Part II, Schmitt looks at questions that arise under jus ad bellum and jus in bello. He argues that while the jus ad bellum approach is cautious, particularly in regard to whether a cyber operation causing severe non-physical consequences can reach the required thresholds, the jus in bello position is less so.

You can read further analysis on Cyber Warfare and international law, including analysis of the French position and the Oxford Statement on Cyber Operations on the blog.

Black Lives Matter

E. Tendayi Achiume provides some thoughts on one of the major issues of this year and gave a reflection on the UN Human Rights Council Urgent Debate in June on Racially Inspired Human Rights Violations, Systemic Racism, Policy Brutality and Violence Against Peaceful Protestors. Achiume argues that the once strong resolution, which would have seen the UN Human Rights Council condemning systemic racism and police brutality in the US and setting up a commission of inquiry, was ‘essentially eviscerated’. 

You can read other posts in this long running symposium on Black Lives Matter.

Other posts

Matthew Happold comments on Belgium announcement that it would submit a request to the CJEU for an opinion on ‘the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties’ and the implications if the CJEU were to hold that the ECT’s investor-State dispute settlement provisions are held incompatible with EU law.

Fernando Lusa Bordin writes about the controversy surrounding the EU’s GDPR and its impact on the the UN System, and asks whether this is the EU engaging in indirect regulation of the UN and its activities. Earlier this year the UN Secretariat communicated legal objections to certain aspects of GDPR and urged the EU to issue additional guidelines clarifying that the GDPR applies neither to UN-System organizations nor to private entities processing or transferring data on their behalf.

Bruno de Oliveira Biazatti examines some issues related to the ICC’s release of its Guidelines for Agreements Regarding Admission of Guilt, including those related to the OTP’s ability to fulfill the plea agreements, the role of victims in plea bargaining, and the possibility of plea agreements covering reparations.

Iryna Marchuk and Aloka Wanigasuriya write about the ICC’s conclusion of its preliminary examination in Crimea and Donbas and the decision by the OTP to request authorisation from a Pre-Trial Chamber (PTC) to open investigations into the situation in Ukraine. They look at the reaction to the decision in Ukraine and the focus of the potential investigation.

As always, you can read all the recent Announcements and Events here.