Two Weeks in Review: 4—15 May 2026

The last two weeks have seen commentators range across a number of topics and jurisdictions. The US-Israeli war in Iran has remained in focus, with the use of US bases abroad raising questions of neutrality and the interdiction of Iranian oil tankers novel question of the laws of the sea and naval warfare. The European Court of Human Rights gave a seminal ruling on the retaliatory dismissal and victimisation of employees who allege sex discrimination, but still falls short of the EU Equal Pay Directive. Reform at the IMF wears thin against the US veto, and tensions between democratic legitimacy and investment arbitration play out in Ecuador’s Constitutional Court. While in Zambia, a human rights conference and HIV/AIDS treatment become sites of big power coercion, as China and the US throw about their weight for political and economic gains.

Discrimination: Victimisation at the ECtHR

Margarita S. Ilieva analyses Ortega Ortega v. Spain, in which the European Court of Human Rights for the first time held that a state violates Article 14 read with Article 8 ECHR when domestic courts fail to protect an employee from employer retaliation after complaining of sex discrimination. While a establishing a welcome and major access-to-justice precedent, the Court’s concept of “retaliation” is significantly narrower than the long-established EU law prohibition on “victimisation” under instruments such as the Equal Pay Directive and Directive 2006/54/EC. In particular, Ortega appears wrongly to require proof of retaliatory intent, treats the severity and proportionality of sanctions as relevant, and suggests protection may depend on the success of the underlying discrimination claim or the absence of effects on third parties. By contrast, EU law protects against any adverse consequence causally linked to equality complaints regardless of motive or proportionality. The ECtHR would have done better to characterise the domestic courts’ validation of Ms. Ortega’s dismissal as a form of “secondary victimisation,” because the judicial response effectively punished her for vindicating her equality rights.

Iran conflict

Pornomo Rovan Astri Yoga argues that recent US interdictions of Iranian oil tankers in distant international waters stretch both the law of naval warfare and the law of the sea beyond their traditional limits. Doctrines such as blockade, contraband, and continuous voyage under the Paris Declaration (1856), the San Remo Manual, and classical prize law are fundamentally destination-based and do not readily apply to outbound Iranian oil exports. Unilateral sanctions cannot, without more, justify boarding neutral vessels on the high seas under UNCLOS rules on flag-State jurisdiction, even where the US invokes statelessness and the right of visit. The U.S. appears to be advancing a broader “war-sustaining capacity” theory of interdiction, but this hybrid practice remains on uncertain footing under existing international law.

Benjamin Meret analyses how third states that allowed the US to use military bases during the 2026 Iran conflict may be classified legally as neutral, non-belligerent, or co-belligerent. Spain and Italy are closest to neutral because they restricted or denied US military use of their territory, while Portugal and France allowed limited logistical or “defensive” support, placing them in an intermediate non-belligerent category. Germany and especially the UK are legally more exposed because their bases may have facilitated offensive operations, potentially amounting to aiding aggression and, in the UK’s case, even co-belligerency due to British authorization and coordination. The broader point is that states rarely invoke the law of neutrality directly, instead relying on jus ad bellum language, leaving the legal boundaries between neutrality, non-belligerency, and participation in armed conflict increasingly uncertain.

Israel weapons and Nord Stream in the German courts

Shun Oshita argues that German courts reviewing arms exports to Israel have not abdicated responsibility under international law, but instead apply a distinctly “process-oriented” form of review grounded in German administrative and constitutional law. Drawing on the Foreign Trade and Payments Act (Außenwirtschaftsgesetz), War Weapons Control Act (Kriegswaffenkontrolgesetz), Art. 2(2) Basic Law (Grundgesetz), the Arms Trade Treaty, and the EU Common Position, the courts treat IHL and human rights obligations as procedural duties requiring continuous governmental risk assessment rather than direct judicial control over foreign policy. Decisions of the Frankfurt and Berlin Administrative Courts, as well as the German Constitutional Court’s February 2026 ruling, reflect judicial oversight focused on whether the executive has reasonably monitored, reassessed, and adapted export decisions in light of developments such as the ICJ’s provisional measures in South Africa v. Israel and the issuance by the ICC arrest warrants for Israeli Prime Minister Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, alleging responsibility for war crimes and crimes against humanity. The real lesson of the litigation lies not in courtroom victories, but in strengthening procedural governance and political accountability for arms-export decisions.

Przemysław Roguski argues that the German Federal Court of Justice’s (BGH) decision in StB 60/25 concerning the Nord Stream sabotage significantly narrows functional immunity for foreign state officials by holding that covert state-directed violence affecting another state’s sovereign interests falls outside immunity ratione materiae. While the Court may have framed its reasoning as an application of customary international law, in reality it departs from existing authorities such as Khurts Bat judgment and the ILC commentary on immunity. These tie the exception more narrowly to acts physically committed within the forum state’s territory. Instead, the BGH adopted an effects-based and sovereign-interests approach, relying in part on Germany’s rights as a “pipe-laying state” under UNCLOS and on the domestic effects of the pipeline destruction. This doctrinal shift could have major implications for state-sponsored cyber operations: cyberattacks causing harmful effects on a state’s infrastructure may now be treated as falling outside the scope of functional immunity, even when conducted entirely from abroad.

Democracy and ISDS: Ecuador-UAE Bit contd. 

Ladan Mehranvar following up on her previous post, argues that Ecuador’s Constitutional Court, in Dictamen 19-25-TI/26A, improperly reinterpreted Article 422 of the 2008 Constitution to permit treaty-based ISDS under the UAE BIT, despite the provision’s original purpose of preventing international arbitration over disputes involving the State. The Court’s reliance on the treaty/contract distinction drawn from cases such as Vivendi v. Argentina annulment decision is analytically flawed: Ecuador’s constitutional framers adopted Article 422 in direct response to expansive arbitral practice in disputes like Occidental v. Ecuador and EnCana v. Ecuador. The ruling contradicts the Court’s own 2023 precedent striking down ISDS provisions in a Costa Rica agreement, as well as two recent referendums rejecting constitutional reform to allow such arbitration. Viewed against the broader global backlash against ISDS, the ruling reflects growing tension between democratic constitutional constraints and executive efforts to revive investment arbitration.

IMF’s Diriyah Principles

Robin Beglinger argues that the IMF’s newly adopted “Diriyah Principles” on quota and governance reform are largely symbolic because they avoid confronting the Fund’s core institutional problem: the effective veto power of the US, which holds 16.49% of voting rights under the IMF’s quota-based system and can block reforms requiring an 85% majority under the IMF Articles of Agreement. While the principles gesture toward greater legitimacy and representation, they do not address demands from emerging economies, particularly the BRICS States, for quota reallocations better reflecting current economic realities. Robin suggests three possible reform paths: adjusting the quota formula, amending IMF voting thresholds, or adopting compensatory reforms such as ending the convention that Europeans lead the IMF. But meaningful redistribution of power is constrained by the political impossibility of the US surrendering its veto. Ultimately, IMF reform is a zero-sum geopolitical struggle—gains for emerging economies would likely come at the expense of European States, Canada, Japan, and potentially poorer member countries.

Coercion in Zambia? Cancelling RightsCon and medicine for minerals 

Marko Milanovic uses two recent episodes involving Zambia to examine the concept of coercion in the context of non-intervention: the last-minute cancellation of RightsCon 2026 after alleged Chinese pressure over Taiwanese participation, and allegations that the US conditioned continued HIV/AIDS assistance on access to Zambian critical minerals. He argues for a “severity-based” understanding of coercion, under which even conduct that is otherwise lawful, such as economic pressure or withdrawal of aid, becomes an unlawful intervention when coupled with demands intruding into a state’s reserved domain and backed by harms severe enough to amount to extortion. On this view, threatening disruption of life-saving PEPFAR-supported HIV treatment plainly crosses the threshold. China’s alleged role in suppressing Taiwanese participation at RightsCon constitutes a paradigmatic example of transnational repression and coercive interference with Zambia’s domestic decision-making, violating freedoms of expression and assembly protected under international human rights law. Finally, all three states may bear human rights responsibility: Zambia for cancelling the conference and failing adequately to safeguard health rights, China for coercively suppressing speech abroad, and the US for potentially leveraging dependence on essential HIV treatment in a manner incompatible with the rights to life and health.

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