Two weeks in Review, 19 December – 1 January

In his post, ‘The Forever Negotiations’, Daniel Bodansky, explores the ongoing negotiations in the context of climate change. Bodansky notes the unique nature of climate negotiation as opposed to other multilateral environmental negotiations while focusing on the COP27 negotiations. Further, he discusses questions of mitigations and adaption along with policies relating to ‘loss and damage’ that were the centre of COP27. 

Read the full analysis here. 

Susan Power examines the UNGA Resolution requesting an Advisory Opinion from the International Court of Justice (ICJ) on the legal status of Israel’s occupation of the Palestinian territory and the consequences arising from it. Power argues that although the concept of occupation is one that is derived from the jus in bello, the request for an Advisory Opinion invites a broad analysis of both apposite jus ad bellum and jus in bello considerations. Moreover, she notes the undergoing discussion on legislation in this context and the significance of the resolution being passed at the Special Political and Decolonization Committee.

Read her full analysis here. 

In her post, ‘Equitable Access Contracts: Building Blocks of a Future Global Vaccine Strategy’, Ayelet Berman discusses the establishment of the intergovernmental negotiating body (INB). INB was established to negotiate a new agreement on pandemic preparedness and response following the legal gaps revealed in the course of the Covid-19 pandemic. A central principle (and obligation) of the agreement is making vaccines fairly and equally available in high-income and low and middle-income countries. Berman highlights funding contracts and technology transfer contracts as two types of contracts that are of particular importance in operationalizing this principle and obligation. Berman Identifies key features of contracts for advancing equitable access, such as defining equitable access, voluntary, non-exclusive licenses and affordable, sustainable pricing, technology transfer, regional or multilateral approach, regulatory approval and timely supply Commitments. 

See Berman’s full analysis here. 

Following the withdrawal of the United States (US) and international forces in July 2021, and the subsequent Taliban takeover, Meltem Ineli-Ciger and Nikolas Feith Tan examine the relevant status of Afghan women and girls fleeing the country under the Convention relating to the Status of Refugees (1951 Convention). The two conclude that:

‘This brief analysis confirms that any woman or girl leaving Afghanistan following the Taliban takeover or those who were already abroad can be accepted to have a well-founded fear of persecution for reasons of being a member of a social group. In view of the situation in Afghanistan in December 2022, all Afghan women and girls should be accepted as refugees as a group and not be required to prove an individual risk of serious harm. Therefore, we conclude that the practice of the Swedish migration agency is an important development that other asylum states are recommended to follow.’

Read the full post here. 

In his post, ‘Rescue at Sea and Asylum on Humanitarian Vessels’, Salvo Nicolosi reviews the exercise of the right to seek asylum aboard humanitarian vessels and the responsibility of the flag states to grant asylum to those disembarking the ships. Nicolosi argues that holding the flag States responsible is unrealistic and legally unfounded. Nevertheless, he concludes that: 

‘Without safe channels of arrival, humanitarian vessels operated by NGOs contribute to guaranteeing access to asylum in Europe, a safeguard that ought to be guaranteed by the EU and its Member States. Accordingly, in the absence of alternatives, any measure aimed at blocking NGOs’ search and rescue activities will result in a prejudice to the right to seek asylum. Viable solutions are to be sought at the political level to break the link between disembarkation and State responsibility, thereby establishing a reliable and permanent relocation mechanism that would not overburden frontline States in the Mediterranean. This will definitely require amending the EU asylum legal toolbox, whose reform has been laying in stalemate already for more than 2 years.’

Read the full post here. 

Favourite Readings 2022