Two Weeks in Review, 22 April – 5 May 2024

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International Court of Justice

Alexander Wentker and Robert Stendel provide an analysis of the International Court of Justice’s (ICJ) decision not to indicate provisional measures against Germany, as requested by Nicaragua regarding Germany’s support for Israel in the Gaza conflict. The authors highlight the unconventional approach taken by the Court in its reasoning and the wording of the operative part of the order. They note that while the Court refrained from indicating provisional measures, its cautious language suggests a readiness to respond flexibly to changing circumstances, maintaining vigilance over the situation and may have implications for other states supporting parties in the Gaza conflict, despite the Court’s refusal to grant provisional measures. Read the full post here.

Rana Moustafa Essawy discusses the high threshold for proving genocidal intent set by the ICJ. Moustafa Essawy examines this question in the context of the allegations against Israel regarding the treatment of Palestinians in Gaza, drawing on previous cases and criticism of this standard, and proposes a balanced approach to meet the ICJ’s threshold by considering multiple motives and thoroughly examining the evidence. Read the full post here.

Francisco-José Quintana and Justina Uriburu explore the proceedings instituted by Ecuador against Mexico in the ICJ. The authors argue that Ecuador’s claims pose significant risks to the legal foundations of Latin American relations. The authors examine Ecuador’s arguments, highlighting their reliance on inappropriate precedents, misconstrued interpretations of asylum principles, and selective reading of relevant treaties, warning of potential ramifications for the institution of diplomatic asylum in Latin America. Read the full post here.

Climate Change

Lea Raible Undertakes an examination of the recent European Court of Human Rights (ECtHR) judgments in climate litigation cases, that highlight the challenges of using human rights law to address climate change. Raible finds these cases reveal difficulties with victim status, exhaustion of domestic remedies, and extraterritoriality, resulting in mixed outcomes. Raible particularly notes the Court’s reluctance to establish a special test for extraterritorial jurisdiction, despite acknowledging climate change’s unique features. Furthermore, the author highlights that the stringent criteria for individual victim status and the special test for NGO standing raise questions about accessibility to justice, especially for marginalized communities. Read the full post here.

In their post titled ‘Climate or carbon neutrality? Which one must states aim for under Article 8 ECHR?’ Chris Hilson and Oliver Geden analyze the ECtHR judgment in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, which found Switzerland’s climate change mitigation efforts insufficient and in violation of Article 8 rights. The authors examine the Court’s expectation for states to have binding climate targets and appropriate governance systems in place, emphasizing the importance of net-zero greenhouse gas emissions. The post delves into the scientific nuances between carbon neutrality and greenhouse gas neutrality, highlighting the implications for climate policy and human rights protection. Additionally, it discusses the challenges faced by courts in interpreting and enforcing climate targets based on evolving scientific understanding and international legal frameworks like the Paris Agreement. Read the full post here.

European Union Initiatives 

Dimitra Stefoudi discusses the European Commission’s initiative to establish an EU Space Law, aimed at promoting resilience, safety, and sustainability in space activities. Stefoudi outlines potential benefits of the initiative such as strategic autonomy, minimum standards for space operations, and a uniform approach to space within the EU. However, challenges, including questions of EU competence in space, legal uncertainty, and delays in presenting a draft of the legislation, are also highlighted. Despite these obstacles, the author argues that the EU Space Law is crucial for ensuring Europe’s competitiveness in the global space sector, emphasizing the need for clear timelines and transparent information dissemination. Read the full post here.

Eugenio Carli examines the legal implications of the European Union’s Operation EUNAVFOR Aspides in response to the Red Sea crisis, particularly focusing on the use of force in self-defense by EU forces in response to Houthi attacks on vessels in Yemen. Carli delves into the interpretation of self-defense under international law, including debates over the timing and scope of defensive actions, and raises questions about legal interoperability among participating states and the attribution of responsibility for any wrongful conduct. Read the full post here.

Human Rights Law

Paolo Busco and Alessandro Pizzuti explore flag state responsibility in international human rights law for individuals on board private vessels, particularly individuals rescued on the high seas by private vessels flying their flag. The authors discuss Norway’s position that it has no responsibility under human rights conventions or the law of the sea for individuals rescued by private Norwegian-flagged vessels in the Mediterranean, contrasting it with Italy’s stance, along with the views of human rights bodies like the UNHCR, the ECtHR, and the Human Rights Committee (HRC). Read the full post here.

Sien Devriendt and Carla M. Zoethout discuss the protection afforded to animals under the European Convention on Human Rights (ECHR), highlighting cases where the ECtHR recognized animal welfare as a legitimate concern under freedom of expression, freedom of association, and freedom of religion. Specifically, the authors examine a recent case involving ritual slaughter in Belgium, where the ECtHR upheld regional decrees requiring animals to be stunned before slaughter, even in religious contexts. The authors find that the court’s decision reflects evolving societal values with regard to animal welfare and public morality, while also accommodating religious practices through reversible stunning methods. Read the full post here.

The situation in Gaza

Eran Sthoeger offers a comprehensive breakdown of the legal nature of Security Council Resolution 2728 concerning the situation in Gaza. Sthoeger emphasizes that not all Security Council resolutions are inherently binding and highlights the complexities involved in determining the binding nature of such resolutions, especially when they don’t explicitly invoke Chapter VII of the UN Charter. The author asserts that each resolution needs to be carefully analyzed based on its language, context, and the circumstances surrounding its adoption, an approach that aligns with the guidance provided by the International Court of Justice in its Namibia and Kosovo Advisory Opinions. Read the full analysis here.

Eirik Bjorge challenges Eran Sthoeger’s claim that Security Council Resolution 2728, demanding an immediate ceasefire in Gaza, is not legally binding. Bjorge argues that the resolution’s use of the term “demands” signifies its mandatory nature, consistent with historical precedent. Bjorge further notes that previous resolutions, such as Resolution 1695, have been considered binding despite not being explicitly tied to Chapter VII of the UN Charter. Furthermore, the author highlights that the majority of Council members and affected states have expressed the view that Resolution 2728 is legally binding, supporting the interpretation of its legal effect. Read the full post here.

International Criminal Law

Miracle Chinwenmeri Uche examines the recent International Criminal Court’s Office of the Prosecutor (OTP) Draft Policy on Complementarity and Cooperation (Draft Policy). The author focuses on two of the topics in the Draft Policy, namely bringing justice closer to communities, and harnessing cooperation mechanisms, given their relevance to the meaningful participation of victims of core international crimes at different stages of proceedings. Chinwenmeri Uche argues that notwithstanding the limited information which may be captured in such a policy document, it does not go far enough to reflect the importance of the principle of complementarity for achieving victim-oriented justice. Read the full post here.

Miguel Lemos examines a recent French court decision to issue an arrest warrant for Syrian President Bashar al-Assad on charges of complicity in crimes against humanity and war crimes, challenging the notion of head of state immunity. Lemos traces the historical context of French contributions in rejecting head of state immunity, particularly after the World Wars, citing reports and international agreements. The author further highlights French involvement in prosecuting war crimes during and after World War II, including efforts to bring Hitler to justice, and discusses recent French judicial decisions that reject head of state immunity for certain crimes, aligning with the precedent set by the International Military Tribunal and challenging the absolute immunity stance adopted by the International Court of Justice in the Arrest Warrant case. Read the full post here.

Sergii Masol discusses Ukraine’s Supreme Court recent clarification regarding the definition of the crime of aggression. Masol outlines a case involving individuals accused of participating in armed aggression against Ukraine and the subsequent judicial process leading to the clarification of a “leadership requirement” within the law. The Grand Chamber of the Supreme Court provided detailed definitions of relevant legal terms and concluded that the crime of aggression applies primarily to individuals holding leadership positions, leading to the cancellation of certain convictions but upholding guilt for other offenses. Read the full post here.

More Posts

Bjørn Kunoy delves into the matter of jurisdictional challenges within the United Nations Convention on the Law of the Sea (UNCLOS), particularly focusing on disputes of a mixed nature that involve not only UNCLOS provisions but also other rules of international law. Kunoy explores how the principle of incidental jurisdiction allows international courts or tribunals to extend their jurisdiction beyond consent-based limits in certain extreme situations. The discussion also examines the principle of territorial integrity under UNCLOS and how it applies to disputes arising from violations of land boundaries, potentially impacting maritime areas governed by UNCLOS. The author concludes that:

“The importance of Article 301 appears largely understated. It sets forward a substantive right for the respect of territorial integrity, albeit being a contingent right that may become operative only under certain circumstances. It is concluded that Article 301 may be considered breached where a violation of a land boundary results in alterations to previously recognized rights and obligations under UNCLOS in the maritime area adjacent to the relevant land territory, which is the subject and cause of the above-mentioned violation of Article 301. Accordingly, disagreements concerning the exercise of rights and obligations in the relevant maritime area result in a dispute concerning the interpretation or application of UNCLOS. Consequently, the proposition is put forward that the relevant court or tribunal seized under Article 287 ‘shall have jurisdiction’ to resolve those parts of the dispute that relate to the material provisions in UNCLOS, notwithstanding the generative feature arises from opposite claims of sovereign titles to land territory.”

Read the full post here.

Zoi Lafazani delves into the complexities of conflict classification under international humanitarian law (IHL) in light of recent events in the Middle East. Lafazani discusses scenarios where one state uses force against another state’s targets on the territory of a third state without its consent, exploring the implications for triggering international armed conflicts (IACs). The author considers various perspectives on when an IAC is initiated, based on the nature of the target and the territorial sovereignty of the state where the force is employed. Furthermore, she emphasizes the importance of prioritizing de-escalation efforts and compliance with legal regimes amidst the intricate challenges of conflict classification. Read the full post here.

Ingrid Brunk and Monica Hakimi explore whether the prohibition of territorial annexation is a peremptory or jus cogens norm in international law, noting the unsettled nature of the question. The authors argue that the prohibition of annexations, is distinct from other international legal norms, highlighting its historical centrality to various core projects in international law. The authors assert that the prohibition of annexations should be treated as a standalone jus cogens norm. Read the full post here.

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