EJIL Analysis

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Reflections on the Strasbourg climate rulings in light of two aims behind the Duarte Agostinho case

Two aims, among others, motivated the decision to bring the Duarte Agostinho climate case (“Duarte”) directly to the European Court of Human Rights against multiple Respondent States. They were, first, to invite the Court to interpret States’ obligations in respect of climate change in a manner capable of protecting those in the most vulnerable parts of Europe. And, second, to prompt the Court to confront the reality that the question of whether an individual State’s climate policies, and therefore the relevant remedies available in its domestic courts, are effective is an inherently relational one. In other words, climate change being a collective action problem, it is not possible to assess the adequacy of one State’s response without considering (a) what the result would be if every State were to respond in the same way and (b) what it entails for other States if we are to achieve the collective goal of avoiding its worst effects. It was thought that a regional court, with its supranational vantage point, was particularly well-placed to engage with…

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Taking the Road Less Travelled: The ICJ’s Pragmatic Approach to Provisional Measures in Nicaragua v Germany

When President Salam announced the ICJ’s decision not to indicate provisional measures against Germany as requested by Nicaragua on Tuesday, the legal advisers of States lending support to the warring parties in Gaza were probably closely listening. As we argue in this post, the ICJ was acutely aware of the implications any decision would have…

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The Attainability of the Evidentiary Standard for Genocidal Intent in Gaza

Since 2019, the International Court of Justice (ICJ) has been perceived as a viable instrument for stopping ongoing genocides after the UN political organs have failed to take effective actions to that effect. Thus, under Article IX of the Genocide Convention (1948), South Africa took Israel to the ICJ alleging genocide against the Palestinians in Gaza after Israel’s…

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Is the Prohibition of Forcible Annexations of Territory a Jus Cogens Norm?

International law prohibits states from forcibly acquiring the territory of other states. But does this prohibition of the annexation of territory have the status of a peremptory or jus cogens norm? The question is unsettled. In the recent set of submissions to the International Court of Justice in the advisory opinion proceeding…

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Priorities for Climate Litigation at the European Court of Human Rights

The European Court of Human Rights’ judgments in KlimaSeniorinnen v Switzerland, Carême v France, and Duarte Agostinho v Portugal and others confirmed that climate litigation in the European human rights system is difficult (general analysis of the judgments here and here). The reasons were…

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