Two Weeks in Review, 19 June – 2 July 2023

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Daniil Ukhorskiy explores the application of a human rights approach to address environmental destruction during the war in Ukraine. Specifically, Ukhorskiy focuses on the devastation caused by the destruction of the Kakhovka Dam across the Dnipro River. Ukhorskiy argues that achieving justice for the victims and survivors of this destruction necessitates going beyond the scope of international humanitarian law (IHL) and embracing the principles of international human rights law (IHRL). According to the author, the destruction of the dam violated various obligations under both IHL and IHRL. In light of this, justice for the survivors should be pursued through all available avenues, including the application of IHL to individuals under international criminal law, as well as providing the victims with the opportunity to seek reparations under IHRL.

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Sissy Katsoni provides her analysis of the June 2023 desision by the European Court of Human Rights (ECtHR) in the case of A.M. and Others v. Poland. The case revolved around allegations that legislative amendments imposing restrictions on legal abortions constitute a violation of Article 8 of the European Convention of Human Rights (‘ECHR’). Katsoni sheds light on the misrepresentation of this decision by anti-abortion groups and delves into the lessons that can be gleaned from this particular ruling. Katsoni emphasizes that the ECtHR has not yet addressed the issue of the prohibition of access to abortion in cases of fetal impairment within the framework of the ECHR. The author highlights that the subsequent practices of ECHR Member States and the recent criticism from the Court towards paternalistic domestic laws, along with relevant human rights jurisprudence, appear to be indicating a different direction.

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In her post, ‘Halfway Through 2023: A Year of Unparalleled, Avoidable Migrant Tragedies at Sea,’ Aphrodite Papachristodoulou examines the legal framework regarding rescues at sea. The focal point of her analysis is the tragic shipwreck that occurred on February 26, 2023, resulting in the loss of approximately 94 lives. Papachristodoulou asserts that the conditions necessary to trigger the duty to render assistance at sea were met when the Hellenic Coast Guard received information about the overcrowded migrant boat. Consequently, she argues that the Hellenic Coast Guard should have taken measures to ensure the cooperation and coordination of search and rescue operations.

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Anh Nguyen examines the G7 Leaders’ Statement on Economic Resilience and Security which evidently hints at China as the culprit of economic coercion. The Statement notes the vulnerabilities of global value chains to geopolitical tensions and coercion and highlights the rise in incidents of economic coercion that seek to exploit economic dependencies and undermine the foreign and domestic policies of G7 states. Nguyen asserts that the term economic coercion and the political use of it by Western states’ as a geo-economic strategy may result in a reappraisal of the lawfulness or opposability of economic coercion under international law. Nguyen calls for the rules against economic coercion to not only be anchored in general public international law as part of the principle of non-intervention but also in the WTO framework, under which rules against anti-competitive behavior and abuse of dominance could be developed. The author finds that such fair competition rules may be necessary to address economic coercion enabled by weaponized interdependence and the corrosive effects it has on not just the economic competitiveness of states but also more generally on their interdependent economic coexistence in the international community.

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Sebastian Abad Jara and Daniel Pereira Campos discuss the Ação Direta de Inconstitucionalidade no. 5032 case, in which the Supreme Federal Court of Brazil will rule on the question of whether members of the armed forces that commit crimes against civilians during peacetime should be tried before civilian or military courts. The authors note that Brazil has an international and constitutional obligation to align its domestic legislation and practices with the provisions and interpretations of the Inter-American system. In accordance with the conventionality control doctrine, the responsibility to ensure that national laws are consistent with the Convention falls on all public authorities, including judges. Thus, the authors assert that any judge handling alleged human rights violations committed by armed forces must guarantee that the scope of the military jurisdiction remains limited for extraordinary cases, restricted to maintaining organization and obedience within the armed forces. The two conclude that:

‘This is an opportunity for Brazil’s highest court to demonstrate its commitment to guaranteeing accountability, protecting human rights, and assuring that Brazil’s legislation is in accordance with the provisions and interpretations of the American Convention on Human Rights.’

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Charlie JP Bennett explores the upcoming legislative initiatives, their contents, and possible contribution to international space law. Specifically, the author notes several communication released by European institutions that indicate a significant upcoming legislative effort, and an expansion of international actions, in the field of space regulation. These include the ‘EU Space Strategy on Defence and Security’ (10 March 2023), the ‘EU Approach for Space Traffic Management’ (15 February 2022), and the recent ‘Draft Council conclusions on ‘Fair and sustainable use of space’ (5 May 2023). The author argues these amount to statements of intent on the part of the EU. Bennett concludes that ‘it’s clear that the EU has a mammoth task in coordinating its interests both at home and abroad, both civilian and military, and both remaining internationally competitive but environmentally conscious.’

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María Fernanda Perico and María Camila Castellanos discuss the Inter-American Court of Human Rights’s (IACtHR) judgment in the Manuela et al v. El Salvador case. ​​The case concerned El Salvador’s responsibility for the arbitrary detention, torture, and conviction of a woman who experienced an obstetric emergency and lost her pregnancy in 2008, in the context of El Salvador’s absolute ban on abortion. The IACtHR found El Salvador responsible for a series of violations relating to pre-trial detention, due process, medical confidentiality, gender-based violence, and discrimination. Nevertheless, the judgment has been criticized for failing to address human rights violations arising from the complete criminalization of abortion from a gender perspective. In their post, the authors build on the existing critique and focus on the IACtHR’s findings regarding the right not to be subjected to torture, as enshrined in Article 5(2) of the American Convention on Human Rights (ACHR). The authors describe the way in which the IACtHR interpreted the right to be free from torture, and the Court’s argumentative deficit in the legal analysis of the violation of Article 5(2) and conclude that:

‘The IACtHR’s analysis of the violation of Article 5(2) in Manuela lacked motivation, in spite of the legal precedents established by the Court in cases involving torture and gender-based violence. This limited the Court’s ability to address the stereotypes that underpin torture in reproductive healthcare settings, and constituted a missed opportunity to establish a consistent standard to apply the rule of exclusion of evidence in similar cases.’

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In his post, ‘‘Try Again, Fail Again, Fail Better’: The International Law Commission is back on International Organizations,’ Lorenzo Gasbarri offers a preliminary analysis of the International Law Commission’s (ILC) new project on the settlement of disputes to which international organizations (IOs) are parties. 

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In his post, ‘Re-enacting ourselves: academic behavior in research seminars,’ Wouter Werner discusses two recent events of seminar re-enactments. A question from a first-year PhD candidate on the way one should behave in research seminars, conferences, or workshops, became the starting point for a role-play or re-enactment seminar. Each participant picked a character to act out and after the seminar, a reflection and feedback session was held. Werner concludes that:

‘Of course, none of this led to a definite answer to the initial question: “how should I behave in research seminars or conferences?” However, it did help to create some ironical distance towards the way academics behave, and did create room to learn from others how they experience being in a seminar or conference. It helped to develop a heightened awareness of power relations in the room and an increased awareness of our own roles and responsibilities in the making of academic life. It also spurred creative ideas how seminars could be done otherwise, how to encourage new twice-behaved behavior in academia. As this also applies to the very idea of the re-enactment, this is, by definition, to be continued.’ 

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In her post, ‘Between “Measurability of Objectives” and “Meaningful End Points” on Affirmative Action Programs and Racial Discrimination: SCOTUS Decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College,’ Diane Desierto explores the recent SCOTUS Decision striking down (6-3) the race-conscious admissions processes of both Harvard College and the University of North Carolina. Desierto contrasts the decision’s two main points with international human rights law, and specifically the United States’ own treaty obligations under the International Convention on the Elimination of Racial Discrimination (ICERD), to which the US is a State Party. Desierto concludes that:

‘My purpose here is not to relitigate the SCOTUS decision in SFFA v. President and Fellows of Harvard College, but to invite some purposeful reflection on the unique position that the United States finds itself in today.  On the one hand, SCOTUS is the governmental organ entrusted with the duty of interpreting Title VI of the Civil Rights Act and the Equal Protection Clause under the Fourteenth Amendment of the US Constitution, which is what it did in issuing its decision yesterday in SFFA. On the other hand, the United States is a State Party to the International Convention on the Elimination of Racial Discrimination, and thus is internationally obligated to take active measures to remedy societal discrimination (past or present or continuing in effects).  How the United States will design such domestically lawful and internationally compliant measures — whether in the form of race-conscious admissions programs that will survive the SFFA parameters or through other forms of affirmative action programs that will not offend the Equal Protection Clause as decided by SCOTUS in SFFA — opens up a new line of international human rights law and constitutional law research questions ahead.’

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David Collins examines a recent decision made by the Commercial High Court of England and Wales that supports the recognition and enforcement of International Centre for the Settlement of Investment Dispute (ICSID) arbitral awards in English courts. The Case in question, Infrastructure Services Luxembourg v Kingdom of Spain (24 May 2023), involved Spain’s application to set aside an award issued by an ICSID tribunal in 2018. The award granted the investor €120 million, and pertained to breaches by Spain of the Energy Charter Treaty (ECT) relating to the state’s removal of incentives for the generation of solar energy. Challenges to ICSID awards in municipal courts are difficult given that under Art 54 of the ICSID Convention (to which both Spain and the UK are signatories), awards issued by ICSID tribunal are automatically recognized and enforceable in signatory states. Collins concludes that: 

‘With this final flourish, the Infrastructure ruling sends a clear message that EU member states will not be able to resist enforcement of awards by investors with assets held in England and Wales by arguing incompatibility with EU law, either in the case of the ECT and probably also under the few remaining active intra-EU BITs. This result could likely spell further trouble for the beleaguered ECT, from which many EU member states have now withdrawn, notwithstanding efforts to upgrade the ECT to make it more environmentally-friendly. Infrastructure is also a resounding confirmation that UK courts remain deeply committed to their international obligations, something that should offer much assurance for litigants and foreign investors alike.’

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