International Court of Justice
Renatus Otto Franz Derler examines the adequacy of the International Court of Justice’s (ICJ) recent meeting with members of the Intergovernmental Panel on Climate Change (IPCC) ahead of its Climate Change Advisory Opinion hearings. The author raises concerns about the lack of a clear procedural basis for the consultation and critiques the ICJ’s informal reliance on experts’ fantômes—external specialists consulted without a formal appointment. He further asserts that this practice undermines transparency, due process, and procedural fairness and calls for a more systematic and transparent use of formal procedures. Read the full post here.
Jane Alice Hofbauer and Philipp Janig examine the ICJ’s judgment on preliminary objections in the Azerbaijan vs. Armenia case, focusing on the Court’s interpretation of the temporal scope of jurisdictional clauses in erga omnes partes proceedings under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Court upheld Armenia’s objection to claims by Azerbaijan, some of which date back to a period when Azerbaijan was not a party to CERD. The authors critique the Court’s decision, questioning its emphasis on reciprocity and its alignment with bilateralist frameworks rather than the collective nature of human rights treaties. Read the full post here.
Ukraine
Philipp Kehl provides an analysis of the legal implications of a purported peace proposal circulated by Donald Trump’s transition team, which would allow Russia to retain control over Ukrainian territories it currently occupies, including Crimea. The author asserts that an agreement requiring Ukraine to cede territory could violate Article 52 of the Vienna Convention on the Law of Treaties, which renders treaties void if obtained through the use or threat of force. Additionally, the author discusses the recognition of such agreement by third states, stressing third-party states’ obligations regarding annexation under customary international law. Read the full post here.
Barry de Vries discusses the United States’ decision to supply anti-personnel landmines to Ukraine in November 2024, which sparked simultaneous Support and condemnation. The author asserts that the acquisition of landmines by Ukraine violates the Ottawa Treaty, which it ratified in 2005, and emphasizes the risks of further escalating the conflict, eroding arms controls and humanitarian law norms. de Vries warns that the acquisition could set a dangerous precedent, undermining international legal frameworks and encouraging further violations of war-related regulations. Read the full post here.
International Criminal Law
Christine Bianco and Brianna Hernandez discuss the challenges of addressing sexual and gender-based violence (SGBV) against men in conflict situations through international criminal law. The authors highlight how traditional legal frameworks often overlook or mischaracterize male victims. The authors critique the definitions of rape adopted by the ICTY and ICC, particularly in cases where men are forced to participate in sexual acts. The authors argue for a redefinition of rape and SGBV to better acknowledge and prosecute male victimization in conflicts. Read the full post here.
Olivia Flasch analyzes tensions between Articles 27(2) and 98(1) of the Rome Statute, particularly in light of recent ICC arrest warrants issued for Israel’s Prime Minister Netanyahu and former Defence Minister Gallant. Flasch notes that the ICC’s decisions, especially in the cases of Al-Bashir and Putin, have led to inconsistent state responses and politicization of the law. The author further argues that the ICC’s attempts to expand its jurisdiction have inadvertently allowed for selective enforcement of international law, undermining the Court’s authority and consistency. Read the full post here.
Norbert Tóth explores Hungary’s relationship with the International Criminal Court (ICC) and the broader implications it might have on international law. The author notes that despite Hungary being an early party to the Rome Statute, it has yet to incorporate it into domestic law, creating significant legal hurdles for complying with ICC obligations. Tóth concludes that conflicts between the ICC’s legal obligations and member state actions might ultimately require adjudication by the Court of Justice of the European Union (CJEU), reflecting a broader challenge at the intersection of international law, EU law, and national sovereignty. Read the full post here.
Human Rights Law
Lorenzo Acconciamessa examines the European Court of Human Rights’ (ECtHR) ruling in Kobaliya and Others v. Russia, where the Court found Russia’s ‘foreign agents’ legislation violated several provisions of the European Convention on Human Rights (ECHR). Acconciamessa challenges the court’s finding that it lacked authority to mandate legislative changes. The author argues that the ECtHR has the authority to require the repeal of incompatible domestic laws based on the secondary obligations that arise from the state’s international responsibility for violations. He further contends that there is a primary obligation for states to align their domestic laws with the ECHR, independent of court findings. Read the full post here.
Anca Ailincai explores the election of a new Polish judge to the European Court of Human Rights (ECtHR) in 2024, which was a significant event after a prolonged delay due to issues with Poland’s previous candidate lists. The author explains the two-stage process for electing judges, which involves national governments submitting a list of candidates, followed by the selection of a judge by the Parliamentary Assembly of the Council of Europe (PACE). Ailincai details the repeated rejection of Poland’s lists under the conservative Law and Justice Party (PiS) and the recent selection of a qualified candidate following reforms in the selection procedure by the new Polish government. Read the full post here.
Nasiya Daminova and Anu Mutanen analyze the Luxembourg Court’s post-COVID jurisprudence on procedural rights within the EU, focusing on how the Court has adapted its interpretation of key rights such as access to justice, fair trials, and the rule of law during the pandemic. Daminova and Mutanen explore the possible impact of these legal developments on Finland, particularly in the context of future crises, such as migration challenges at the Finnish-Russian border. The authors further highlight the importance of upholding EU procedural rights even during emergencies and discuss how Finnish authorities may be required to comply with EU laws, with the possibility of financial sanctions for non-compliance. Read the full post here.
Use of Force
Marko Milanovic and Michael Schmitt examine the legality of Israel’s recent military actions in Syria under jus ad bellum. To explain the recent airstrikes and the taking of control of UN-monitored buffer zones, the Israeli government cited security concerns about jihadist groups and other potential threats. The authors analyze whether these actions can be justified as self-defense under Article 51 of the UN Charter, concluding that, even under expansive interpretations of anticipatory self-defense, Israel’s use of force can not be legally justified. While acknowledging Israel’s legitimate security concerns, the authors argue that the actions taken—absent clear evidence of an imminent armed attack—do not meet even an expansive approach to self-defense. Read the full post here.
Maritime Law
Anna Petrig explores coastal state jurisdiction in the territorial sea, specifically in relation to protecting individuals on board foreign-flagged vessels. While the United Nations Convention on the Law of the Sea (UNCLOS) grants coastal states sovereignty over their territorial sea, this sovereignty is subject to certain limitations, including the rights of foreign vessels to innocent passage. The author examines how these rules apply when individuals on board foreign-flagged ships require protection, such as migrants or asylum seekers. The analysis highlights the tension between coastal state jurisdiction, the duty to protect human rights, and the principle of non-interference in a vessel’s internal affairs. The author underscores the need to balance state sovereignty, international human rights obligations, and maritime law principles when addressing such situations. Read the full post here.
Thea Coventry explores the growing threat of sabotage to submarine cables and pipelines in the high seas and exclusive economic zones (EEZs), areas that are naturally subject to less enforcement. Coventry proposes three strategies to address the enforcement gap under international law. Further, the author highlights the lack of an international organization dedicated to submarine infrastructure, suggesting pathways to build momentum for treaty negotiations. Read the full post here.
EJIL Analysis
EJIL: The Podcast! Episode 30: On the Precipice – The International Criminal Court and State Immunity is now available. In this episode, Paola Gaeta, and Roger O’Keefe join EJIL’s Marko Milanovic and Philippa Webb to discuss recent developments at the International Criminal Court. Listen to the episode here.
Volume 35 (2024) No. 3 of the European Journal of International Law has now been published. See the table of contents here, a note by Gail Lythgoe and Christian Tams on this issue’s reviews here, and an introduction to this issue’s contributions by Wanshu Cong here.
Recent events and announcements can be found here.
