Two Weeks in Review, 8 – 21 April 2024

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Victoria Skeie discusses the complexities and challenges of the ship recycling industry, with a focus on the shortcomings of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009. She critiques the Convention for its vague mandates and lack of stringent measures, suggesting that a shift towards enforcing corporate responsibility through instruments like the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights and other relevant regulations might be more impactful alternatives. Read the full post here.

Tal Mimran analyzes a significant legal ruling from an Israeli district court concerning the eligibility of an LGBTQ Palestinian man to seek refuge under the Refugee Convention. Mimran discusses the decision that acknowledges the potential for LGBTQ Palestinians to apply for asylum in Israel, challenging the broader interpretation that Palestinians are generally excluded from seeking refugee status due to UNRWA’s presence. The author outlines the legal frameworks involved, the specifics of the case, the judgment, and the potential implications for future asylum applications by LGBTQ Palestinians in Israel. Read the full post here.

Ahmad Ali Shariati discusses the dire situation faced by women in Afghanistan following the Taliban takeover and explores pathways for to ensure international accountability. Following an examination of legal avenues for accountability, including individual criminal responsibility under the Rome Statute and international responsibility of supporting States under the Ljubljana Convention, the author examines the concept of “gender apartheid.” Read the full post here.

Lorenzo Cotula and Ladan Mehranvar discuss the documentary film “The Tribunal,” which sheds light on the functioning and impacts of investor-state dispute settlement (ISDS). The film focuses on a specific ISDS case involving a Canadian mining company and the government of Ecuador over a copper mining project in the Intag Valley, Ecuador and highlights the exclusion of local actors from the ISDS process and the limited protection of their rights, raising questions about fairness and justice in investment disputes. The authors connect the documentary’s themes to ongoing discussions within UNCITRAL Working Group III on ISDS reform, particularly regarding third-party participation, recourse to local remedies, contributory fault, counterclaims, and discontinuation of proceedings. Read the full post here.

Juan Pablo Hernández Páez analyzes the legal issues arising from Ecuador’s raid on the Mexican Embassy in Quito to apprehend Jorge David Glas Espinel, the former Vice President of Ecuador, who had sought asylum there. The author discusses potential violations of international law, particularly the Vienna Convention on Diplomatic Relations and the Caracas Convention on Diplomatic Asylum, and explores Mexico’s options for pursuing legal recourse, including the possibility of bringing the dispute to the International Court of Justice (ICJ). The author further examines jurisdictional challenges, breach of inviolability of diplomatic premises, and the legality of granting diplomatic asylum, providing insights into the complex legal framework governing such incidents. Read the full post here.

In his post ‘Common Article 1 Does Prohibit Complicity in IHL Violations, Through Arms Transfers or Otherwise,’ Marko Milanovic responds to a recent post by Mike Schmitt and Sean Watts published in Articles of War, on Common Article 1 (CA1) of the Geneva Conventions. In their post, the authors argue that CA1 should not be understood as having any external dimension with regard to the case brought by Nicaragua against Germany before the ICJ. Read the full reply here.

Climate Change

Jeremy Letwin explores the Klimaseniorinnen case in the ECtHR, focusing on the dissenting oppinion by Judge Eicke criticizing the groundbreaking decision as extending beyond the established legal framework. The author argues that:

“the Court’s expansion of the concept of victim status/standing was highly innovative and involves a major departure from the Court’s existing jurisprudence. However, I argue that the supposedly “new” right and duty created by the Court represent entirely orthodox, modest, incremental developments of the Court’s well-established jurisprudence on environmental positive obligations.”

Read the full post here.

In his post ‘A Swiss human rights budget?’, Stephen Humphreys delves into the the dissenting opinion by Judge Eicke, on the complexities of national climate policies and their alignment with global climate objectives. While the author emphasizes the concept of ‘national carbon budgets’ derived from per capita emissions, he finds that the ruling struggles to address the extraterritorial human rights impacts of local policies, underscoring challenges in achieving fairness and equity in global climate action. Read the full post here.

Andreas Buser sheds light on the ECtHR’s findings in Klimaseniorinnen v Switzerland dealing with States’ responsibility to mitigate emissions caused by the production processes of goods imported into a State (embedded emissions). Buser concludes that:

“Although the ECtHR ultimately did not decide the issue on the merits, its findings on embedded emissions point in the direction that States can be held accountable for failing to reduce their economies’ extraterritorial GHG footprints. Thus, Parties to the ECHR are well advised to make regulatory adjustments to include embedded emissions in their legal frameworks and national carbon budgets. While human rights obligations may not require States to adopt a particular trade instrument to restrict the import of embedded emissions, such legal instruments could be part of the solution. If so, they would require refinement to address equity concerns within international climate law.”

Read the full post here.

In his post ‘Climate Change and the ECHR: The Results Are In,’ Ole W Pedersen provides remarks on the recent judgments by the European Court of Human Rights (ECtHR) on climate change cases, including Verein KlimaSeniorinnen Schweiz v. Switzerland, Carême v. France, and Duarte Agostinho v. Portugal. The author finds that the KlimaSeniorinnen judgment stands out for its recognition of the relevance of human rights in addressing climate change. Further, he notes that the ECtHR’s decision to grant standing to the association in KlimaSeniorinnen and its detailed articulation of the obligations of states under Article 8 of the Convention signify a significant step forward in environmental jurisprudence. Nevertheless, Pedersen concludes that although these judgments may have symbolic and practical implications for future climate change litigation, they also demonstrate the court’s adherence to established principles and the need for a balanced approach in addressing complex legal and environmental challenges. Read the full post here.

Aoife Nolan examines the judgment in Verein KlimaSeniorinnen v. Switzerland, focusing on intergenerational equity and future generations in climate justice litigation. Nolan analyzes arguments presented during the litigation process, including the government’s stance and the applicants’ assertions. The author further discusses the concept of intergenerational burden-sharing and the Court’s role in addressing the democratic exclusion of future generations from decision-making processes. Nolan concludes by stataing that:

“There is much left to be said about the ECtHR’s approach to inter-generational equity and future generations. Ultimately, however, the KlimaSeniorinnen was a very significant step forward in terms of the Court’s approach to future generations and inter-generational equity.  These issues are of direct relevance to a number of the cases stayed pending the resolution of KlimaSeniorinnen, Duarte and Careme, including Greenpeace Nordic and Others v. Norway. The Court’s engagement is therefore necessarily a ‘work in progress’.”

Read the full post here.

Linos-Alexander Sicilianos and Maria-Louiza Deftou examine the ECtHR recent judgments on climate change-related cases, highlighting the challenges of establishing victim status and jurisdiction in such matters. The authors note that while the KlimaSeniorinnen case saw a breakthrough by recognizing climate-related harm as a violation of the European Convention on Human Rights (ECHR), the Duarte Agostinho case faced admissibility hurdles due to jurisdictional issues and failure to exhaust domestic remedies. These judgments set a precedent for future climate change litigation, emphasizing the court’s role in addressing global concerns and promoting state accountability, while also raising questions about the incorporation of the right to a healthy environment into the ECHR. Read the full post here.

Marko Milanovic offers an analysis of the recent decisions made by the ECtHR regarding climate change litigation. Milanovic outlines the Court’s rulings on standing, substantive application of human rights law to climate change issues, and the responsibilities of states in mitigating climate change. Milanovic concludes that Court’s decisions highlight the intersection of human rights and environmental concerns, emphasizing the duty of states to address climate change while also recognizing the limitations of legal mechanisms in effectively tackling such a complex global challenge. Read the full post here.

José Saldaña explores the landmark decision by the Inter-American Court of Human Rights in the case of La Oroya in Peru regarding the protection of the right to a healthy environment in the context of mining activities. The Court held the Peruvian State responsible for violating various human rights, including the right to a healthy environment, due to environmental contamination caused by the La Oroya Metallurgical Center. Saldaña finds that eespite the comprehensive reparations ordered by the Court, including environmental remediation and medical attention for affected individuals, the implementation of these measures faces significant challenges due to entrenched economic interests, institutional constraints, and the dominance of international investment law in extractive contexts. He further highlights the limitations of international human rights law in addressing environmental injustices caused by extractive activities and underscores the complexities of enforcing the right to a healthy environment in such contexts. Read the full post here.

EJIL: The Podcast!

  • Listen to Episode 25: “Do We Have a Responsibility toward Future Generations?” here.
  • Listen to Episode 26: “Hunger for Thought” here.

All recent Events and Announcements can be found here.

The European Journal of International Law has new advanced articles and advanced reviews available to read online.

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