Two Weeks in Review, 3 July – 16 July 2023

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New Issue of EJIL (Vol. 34 (2023) No. 2)

The latest issue of the European Journal of International Law  (Vol. 34 (2023) No. 1) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Human rights 

Hannah Katz and Itamar Mann present their analysis of the judgment rendered by the European Court of Human Rights (ECtHR) in the Safi and others v. Greece case. The authors extrapolate insights from the Safi case judgment to anticipate the Court’s approach and expected adjudication of a potential second application brought forth by the survivors of the Pylos shipwreck last month. By considering the emerging evidence and documentation that were not available during the Safi case, Katz and Mann argue that the Court may be compelled to address whether Greek authorities engaged in an unlawful use of force and bear responsibility for the sinking incident. Moreover, the authors assert that the Court should contemplate issuing a “structural injunction” for the protection of human rights in migrant rights litigation, emphasizing the necessity of such measures to safeguard human rights.

Read the full post here.

Lea Raible explores the justification for the extraterritorial application of Human Rights obligations in cases related to climate change. Raible asserts that the establishment of Justification is a crucial component in the process of allocating responsibility to actors in this domain. Raible identifies challenges in allocating obligations in climate change cases due to the reliance on implicit factors such as de facto authority, effective control, and control over harm. She concludes that:  

“Overall, the fraught relationship between extraterritoriality and climate change suggests two important conclusions. First, if the integrity of human rights protection is important, then so is justifying obligations. Second, we should not abandon justification in the face of urgency but to look for principled alternatives, changing, if warranted the parameters of what needs to be justified.”

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Alexandre Skander Galand provides a critical analysis of the recent decision of the Committee on the Rights of Persons with Disabilities concerning the case of Mangisto and al-Sayed v the State of Palestine. The decision, which pertains to the disappearance of two Israeli nationals in Gaza, found Palestine responsible for multiple violations of the Convention on the Rights of Persons with Disabilities (CRPD), despite the absence of effective control over the territory where the violations occurred. In the context of statehood, the author asserts that:

“Finally, the Mangisto and al-Sayed case, in particular the establishment of an irrebuttable presumption of jurisdiction over all of the Occupied Palestinian territory, and the obligation of the State of Palestine to take the diplomatic, economic, judicial or other measures that are in its power to take, are an affirmation of Palestinian sovereignty. Interestingly, the measures the Committee calls for form part of measures needed, according to the ECtHR, for the State to re-establish its control over its territory (Ilascu and others, para 339-344). This obligation to strengthen its jurisdiction over its territory is not made explicit by the CRPD Committee. A decision taking a stronger stance on the ‘obligation’ to re-establish territorial control would have certainly been more favorable to Palestine’s cause related to self-determination and to its claim that Israel is unlawfully occupying its territories. It would also have reaffirmed the PA’s authority over Gaza, instead of simply reiterating the need to consolidate the State of Palestine.”

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At its 25th anniversary, Julieta Lobato explores the most notable impacts of the ILO 1998 Declaration of Fundamental Principles and Rights at Work (ILO), starting from its inception to the 2022 Amendment that incorporated the right to a safe and healthy working environment. Lobato focuses on recent advancements within the Inter-American System of Human Rights (IASHR), where the ILO Fundamental Conventions have served as a powerful platform for expanding workers’ rights. Lobato concludes that: 

“The last 25 years have seen the ILO Declaration emerge as a pivotal instrument, transcending the boundaries of the ILO itself. While concerns persist regarding the categorization of labour rights and the tangible outcomes of increased ratification rates, the Declaration has showcased its potential to bolster the recognition of core labour standards within regional human rights systems. This post has delved into recent findings within the IASHR, where the ILO Fundamental Conventions have catalysed the recognition of workers’ rights. While the role of human rights systems regarding workers’ rights also faces challenges (see here and here), further exploration of the dissemination of Inter-American labour standards, both intra-regionally through the conventionality control doctrine and extra-regionally through cross-fertilisation and transnational strategic litigation, holds great promise for future analysis.”

Read the full post here.

Law of the sea 

In the aftermath of the disappearance of the underwater vehicle named Titan near the Titanic shipwreck, Daiana Seabra Venancio analyzes the status of underwater vehicles according to the United Nations Convention on the Law of the Sea (UNCLOS). The author highlights a legal loophole pertaining to underwater vehicles which allows experimental UVs to engage in any activity on the high seas, as long as such activities do not contravene the UNCLOS or relevant national legislation. Seabra Venancio further examines the underlying reasons for the absence of a regulatory framework governing underwater vehicles (UVs) in international law. Further, the author explores the issues arising from the proliferation of unregulated activities, such as submarine tourism.

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In her post titled “Development, Marine Biodiversity, and the Common Heritage of Mankind: The ISA’s Deep Seabed Mining Quandary and Complying with the High Seas BBNJ Convention,” Diane Desierto examines the process of approving permit applications for commercial deep seabed mining. Desierto asserts that the conduct of the International Seabed Authority (ISA) in this new phase, where considerations and provisional approvals of applications are possible, should be guided by the norms stipulated in the Convention, terms and principles outlined in the Annex, and the principle of non-discrimination among contractors. However, she highlights the importance of applying these norms, terms, and principles cautiously and with a sense of prudence and precaution. Furthermore, she concludes that:

“At this point in time, it is both legally permissible, as well as advisable on international policy, for the ISA not to overstep its limited jurisdiction to grant provisional approvals by ensuring that any such provisional approval is actually compliant with Section 1(15)(c), and thus should be based on the norms of the Convention, the terms and principles of the 1994 Implementation Agreement, as well as the principle of non-discrimination among contractors. The burden is not just on the applicant, but more so on the International Seabed Authority, to establish compliance with these applicable rules of international law.”

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Other posts 

In their post titled “Jurisdictional Immunities, all over Again?,” Valentin von Stosch and Felix Herbert offer their analysis of the proceedings initiated by Iran against Canada before the International Court of Justice (ICJ). The proceedings, which commenced on 27 June 2023, revolve around the question of whether State-backed terrorism enjoys State immunity from domestic jurisdiction or enforcement. The authors assert that, unlike in Iran’s previous attempt to introduce terrorism-related immunity exceptions to the ICJ, the Court has jurisdiction in the current case, and the prospect for the merits appears promising as well. 

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In their analysis, Grażyna Baranowska and Gabriella Citroni examine the United Nations General Assembly resolution establishing the Independent Institution on Missing Persons in the Syrian Arab Republic. The institution was created with the primary objective of uncovering the fate of missing persons in Syria and offering appropriate assistance to victims, survivors, and families affected by their disappearance. Baranowska and Citroni argue that it is imperative for the new institution to explicitly address the matter of enforced disappearances, even though it is not directly referenced in the resolution. The two highlight two notable novelties of the institution. Firstly, it is the first United Nations initiative to address the issue of missing persons while not having access to the territory where disappearances occurred. Secondly, it explicitly aims at providing support to victims, survivors, and the families of those missing, which is a significant development.

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Malcolm Jorgensen reviews Germany’s recently published National Security Strategy of 2023 within the context of the political framing of the international legal order. In the 2023 National Security Strategy Germany continued to frame its commitment to international law in terms of the ‘Rules-Based Order’ (RBO), rather than endorsing the political framework of a ‘multipolar international order’ (MIO) promoted by other states. Additionally, the 2023 publication introduces a novel notion of ‘free international order’ (FIO) as a complementary and fundamental commitment along with the RBO. Jorgensen asserts that the international legal order’s contested political framing reveals the extent to which current disruptions extend beyond mere differences in legal interpretation. He contends that the normative desirability of international law relies on its substantive qualities.

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Tomas Hamilton assesses the U.S. Department of Justice’s landmark plea deal in the Lafarge proceedings, which represent a significant development in the field of corporate accountability and terrorism. The Lafarge company and its subsidiary were subject to substantial financial penalties amounting to $778 million for their involvement in providing material support to terrorist organizations. Hamilton considers the fine and asset forfeiture components of the Lafarge Settlement and evaluates its broader significance for the victims of terrorism. He argues that in line with proposals put forth to the U.S. Congress, the establishment of a permanent U.S. Fund for Victims of Designated Terrorist Organizations is warranted. Such a fund would distribute corporate financial penalties to the victims, thereby addressing their needs and providing a mechanism for reparation.

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In their post, “Open Access: No Closed Matter,” The editors-in-chief of the European Journal of International Law, the International Journal of Constitutional Law, and the editorial board of the London Review of International Law examine the consequences associated with Open Access publishing. The esteemed editors address a range of potential risks, including the possibility that authors may encounter challenges in publishing due to a lack of access to funding. Another risk discussed is the potential perception of editorial decisions as being influenced by the author’s affiliation, as affiliation may influence the ability to cover publishing fees. Additionally, authors may face limitations in publishing solely with their affiliate institutions and publishers or research council instructions. Moreover, the editors highlight the concern that the financial sustainability of Open Access journals may become reliant on the quantity rather than the quality of published articles. 

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