Two weeks in Review, 30 January – 12 February

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Massimo Marelli explains the decision to open an ICRC delegation in Luxembourg dedicated to cyberspace. He notes its necessity for the humanitarian sector and the ICRC, to explore and engage in policy-making; legal and technological efforts to prevent and mitigate digitally-enabled harm; and to safeguard humanitarian organizations from digital threats. The author emphasizes how the Delegation will be a concrete tool to identify digital challenges and threats while ensuring that innovation supports instead of undermines operations. The Delegation aims to conceptualize, design, and set up a safe, neutral, impartial, and independent infrastructure that will serve as a testing ground for various R&D initiatives, and will accelerate progress on pressing issues, such as the development and testing of biometric technology that addresses the challenges and risks for affected persons, and to ensure that they can be used in a responsible manner.


In his post, ‘Milestone or missed opportunity? The ECtHR Grand Chamber judgment in Fedotova v. Russia on the legal recognition of same-sex couples’, Giulio Fedele analyses the court’s ruling that Russia violated Art. 8 ECHR since it failed to justify the absence of means of legal recognition available for same-sex couples on grounds of public interest. Fedele argues that all in all, the judgment presents the positive aspect that the Grand Chamber confirmed and consolidated its case law on legal recognition of same-sex couples, affirming the existence of a general positive obligation that is de facto binding for every State that does not currently provide for neither equal marriage nor civil unions. Nevertheless, the author concludes that even though the approach taken by the Court was very well-balanced and careful, one might maintain that Fedotova represents a missed opportunity.

Julie Ringelheim analyzes the European Court of Human Rights’ recent judgments in Basu v. Germany and Muhammad v. Spain on racial profiling in identity checks. For the first time, the ECtHR was confronted with alleged racial profiling in police identity checks. Ringelheim finds these decisions disappointing for three reasons: first, the Court’s review of the effectiveness of the investigation in Muhammad appears too superficial; second, in both judgments, the Court refrains from examining the legal framework regulating police activities; and third, it disregards the special difficulties involving in proving discrimination in identity checks.

Other posts

In his post, ‘Vessel-Source Marine Pollution and the Non-Suspension of Coastal State or Port State Proceedings: Pinpointing Flag States of Repeat Disregard in Article 228 of UNCLOS?’, Arron N. Honniball explores the question of assessing and establishing a flag state of repeat disregard. Honniball concludes that:

‘Exceptions to the primacy of flag State jurisdiction are strictly construed. Article 228 of UNCLOS preserves this primacy through a right of pre-emption against defined foreign State proceedings (Articles 218 and 220) – equally motivating flag States to address violations within six months of said foreign proceedings so as to preserve their primacy. Scepticism in applying the Article 228 exceptions would dissipate with guidance and multilateral tools of common and objective application. However, to date, the rare practice on repeat disregard focuses on opaque executive decisions at the unilateral level (France) or sidestepping Article 228 altogether. Anticipated multilateral tools that might lend weight to a repeat disregard test have significantly developed, but as yet are insufficiently specific or public to demonstrate a proof of concept in the shared application of Article 228. Perhaps revisiting Article 228 as part of 2023’s focus on marine pollution is in order.’

Read the full analysis here.

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