The Gaza War
In his post titled ‘Resurfacing Issues of the Arab League in Light of the Gaza War,’ Faisal M. Al-Hababi examines the role regional organizations can play in preserving global peace and security, particularly the role of the Arab league. In the context of the ongoing Gaza war, the author stresses the need to activate regional mechanisms under the Arab League, which requires a fundamental revision of the Charter of the League. Al-Hababi concludes that the Arab League must create a platform for inter-state dispute resolution methods and provide collective punitive measures as an effective means of deterring and punishing States in contravention of international law. Such measures, he asserts, should be limited to diplomatic and economic (non-military) measures, given the importance of avoiding regional armed conflicts in the Arab region.
Read the full post here.
Mais Qandeel offers an analysis of States’ obligations to ensure respect for international humanitarian law in connection with the ‘unfolding events in the Palestinian territory.’ The author considers the position of non-belligerents under Common Article 1 of the Geneva Conventions. The post starts with an overall view of the situation and moves to analyze and apply Common Article 1 to the ongoing events. The author calls on all states to take immediate action, noting that those who fail to act, are in violation of their obligations under the Geneva Conventions and should be held accountable.
See the full post here.
Human rights
In her post titled ‘Why education rights must finally be taken seriously: Exploring the perils of mnemonic indoctrination in Russia,’ Anastasiia Vorobiova undertakes an examination of the new Russian educational standard. In accordance, New Russian history textbooks, promoting hostile narratives and teaching the “right” version of history in Russia are now the standard of teaching. The author considers the new Russia’s history curriculum and asserts it will fail to adhere to the standard set by the CRC and ICESCR, by amounting to what she refers to as ‘mnemonic indoctrination.’ Further, In the history curriculum in its current form, Russian children are expected to learn the “correct” version of history that the government prescribes and to be ready to defend it. She asserts that this constitutes a clear misuse of education, inconsistent both with educational rights and the fundamental rights of children.
Read the full post here.
Anna M. Puigderrajols Triadó and Inshira Faliq explore the European Court of Human Rights (“ECtHR”) approach to euthanasia in the case of Mortier v. Belgium. The landmark judgment is the first-ever ruling of the ECtHR on euthanasia with the rights protected under the European Convention of Human Rights (“ECHR”) and is the first judgment concerning euthanasia in cases involving psychological disorders. The authors conclude that:
‘The ECHR, as a “living instrument”, has to be interpreted according to the present-day conditions. Accordingly, the Court will need to adapt to the increasingly growing acceptance of euthanasia in national legal orders in the CoE. In this case analysis, we delved into the complexities of the Court’s stance on the necessity of enhanced safeguards in euthanasia cases, particularly when the concept of margin of appreciation comes into play. The Court’s decision in Mortier, where it did not find a substantive violation of Article 2 and instead embraced a broad margin of appreciation, raises many questions. This is particularly concerning in the context of a country like Belgium, with a liberalized euthanasia system and inbuilt conflicts within it. It remains to be seen in future cases, such as the pending application of Karsai v. Hungary, if such tension will be addressed or whether states will keep enjoying wide deference in the establishment of laws in this regard with the positive and negative aspects that it entails.’
Read the full post here.
Felix Peerboom explores the Finnish government’s decision to close all but one of its border crossings with Russia as a response to a spike in the arrival of undocumented migrants. The Finnish authorities claimed that Russia encouraged and facilitated the arrival of the migrants. As a response, the EU sought to adopt legislation to deal with instrumentalized migration. The author considers the unfolding tensions and the relevant legal framework stressing that these responses by the EU are problematic. Peerboom notes that these are derogations from the normally applicable asylum standards that carry various risks.
Read the full post here.
International Courts and Tribunals
In her post titled ‘The (Un)Changing Face of ICJ Advocacy,’ Iben Vagle presents a study that seeks to identify the gender aspect of international litigation practice, specifically as it applies to the representatives of counsel appearing before the ICJ. Vagle asserts that the study enables an assessment of how courtroom dynamics including the gender and professional background of the advocates, may shape international law. The author concludes that the findings of the study support the widely held belief that oral proceedings at the ICJ are predominantly led by a specific group of individuals, mainly male academics with similar educational backgrounds and affiliation with professional networks. The author finds that this situation might affect the decision-making processes within the Court itself.
See the full analysis here.
Francesco Romani and Gloria Gaggioli present the intervention of the Geneva Academy’s third-party intervention in the case of Ukraine and the Netherlands v. Russia. The authors share the main submissions in the intervention and highlight its main points of convergence and divergence with the most recent interventions prepared by Prof. Marko Milanović and Prof. Sangeeta Shah. The two conclude that:
‘We are confident that both similarities and differences in the submissions will, in their own way, assist the Court in addressing this and future cases. The background harmony on certain core issues reflects a widely perceived hope that the ECtHR reaffirm, clarify or revisit some fundamental tenets of its jurisprudence. At the same time, variations in certain solutions testify to the importance and liveliness of the academic debate on these seminal issues surrounding the interpretation and application of the ECHR. We look forward to seeing how the Court will now weave them in a melody for the better protection of human rights in conflict situations.’
Read the full post here.
In his post titled ‘Challenges in Executing Judgments of the European Court of Human Rights: the Case of the Roma,’ James A. Goldston shares insights as the litigator in the D.H. case. Goldston litigated the case on behalf of 18 Roma children from the Czech Republic who were educated at “special schools” offering inferior primary-level education and virtually no opportunity to advance to secondary schools. The author asserts that the ruling itself is a leap forward in recognizing indirect discrimination. The author finds that ‘the execution of judgments is often far from a formulaic exercise. When the European Court issues rulings that address fundamental matters of individual rights and constraints on government power, execution is often messy, and deeply political.’
See the full post here.
International Criminal Law
Dylan Jesse Andrian undertakes an examination of the ICC Prosecutor’s decision to potentially confirm charges against the leader of the Lord’s Resistance Army (LRA), Joseph Kony in absentia. The author notes a few positive aspects of the Court’s decision, such as the requirement that the Prosecution take all reasonable steps to communicate formal, detailed, and well-substantiated charges to Kony before the confirmation hearing instead of merely relying on the allegations publicized in the Arrest Warrant. However, he finds that the core of the decision, namely whether there should have been in absentia confirmation of charges proceedings, is ill-reasoned and failed to take into account the OPCD’s submissions and the Defense’s rights in general.
Read the full post here.
Natasa Mavronicola and Mattia Pinto explore the shift in the penal accountability paradigm. The authors focus on the idea of ‘never again’: a vow to prevent atrocities that emerged from the horrors of World War II, and a conviction that criminal sanctions are essential for its fulfillment. The authors refer to the association of accountability with criminal punishment as the ‘penal accountability paradigm’. The authors assert that the ‘never again’ promise gives states undue benefit of the doubt; decontextualizes, individualizes, and exceptionalizes atrocities; marginalizes or delegitimizes alternative forms of accountability and condemnation; and ultimately undermines prevention. The two stress their concern with how the penal accountability paradigm captures, and dominates, the terrain of moral, political, and legal condemnation and opposition to (ongoing) atrocities.
Read their full analysis here.
Ukraine
In his post titled ‘Funding Ukraine’s Aid: New Challenges,’ Artem Ripenko explores various avenues to obtain funding for the reconstruction and recovery needs of Ukraine, estimated at over 400 billion USD. Taking into consideration the absence of Russia’s consent along with other political and financial circumstances the author advocates for shifting Ukraine’s assistance source from budgetary funds to using Russia’s frozen assets. The author finds that:
‘Apparently, The G7 and other states supporting Ukraine should switch to more robust measures regarding Russian state assets, i.e., confiscating these assets, because self-defence and countermeasures doctrines set all the necessary legal grounds. A part of confiscated assets (say, 70%) should be sent to Ukraine’s compensation fund as an element of the future compensation mechanism (could be accumulated on the escrow account before the mechanism is inactivated), and the rest (30% in that case) could be directed to Ukraine’s reconstruction. The proportions could be discussed and endorsed while preparing a multilateral treaty on a compensation mechanism for Ukraine.’
Read the full post here.
Kubo Mačák explores the legality of Ukraine’s cyber-attack against Russia’s Federal Tax Service, in which it claimed to destroy the Tax database. Under the understanding that International Humanitarian Law governs cyber operations during armed conflict, the author examines the compatibility with the rules of conduct of hostilities, the qualification of data as an object under IHL, and the possible implications of such an attack moving forward.
Read the full post here.
More
In her post titled ‘Twelve Years On: An Exceptional Chemical Weapons Tribunal,’ Devika Hovell discusses the initiative to create a tribunal for crimes committed in Syria and the legal challenges involved. The author asserts that those responsible for chemical weapons use in Syria have so far been granted impunity by the international community. Hovell notes that significant relevant evidence relating to the crimes has been collected, and declaration by victims and victims’ organizations of chemical weapons attacks in Syria call for the establishment of a tribunal demands that legal scholars instruct on its legal potential. She concludes that: ‘Ultimately, the establishment of an Exceptional Chemical Weapons Tribunal will depend on state will. Yet where there is a way, there must be a will. After twelve years of atrocity, to determine otherwise is to be complicit in impunity.’
Read the full analysis here.
Shani Friedman undertakes an examination of the International Seabed Authority (ISA) temporary measures orders issued regarding Regulations on Prospecting and Exploration for Polymetallic Nodules (Polymetallic Nodules Regulations). The measures were issued concerning an incident involving an ISA contractor, Nauru Ocean Resources Inc (NORI), and Greenpeace’s vessel, the Arctic Sunrise. These measures and the overall conduct of the ISA Secretary-General raise questions concerning the possible expansion of the ISA’s jurisdiction. The author examines the measures issued by the ISA and its capacity to issue such measures to begin with. The author concludes that international law and other authorities including flag states can address offenses on the High Seas, however, the ISA is not the right forum to address such issues.
Read the full post here.
In their post titled ‘Why Denmark Can’t “Block” Dark Tankers,’ Kristina Siig and Richard L. Kilpatrick Jr., explore the efforts put forward by sanctioning authorities to improve enforcement of the Russian oil price cap. The coalition-driven cap, aimed on the one hand to limit Russia’s ability to generate oil-based revenue to fund its war effort, and to maintain the global supply of energy on the other has proven ineffective. In practice, as the Russian oil prices climbed over the cap and legitimate industry actors withdrew from the Russia-related oil trade, a commercial void emerged. As a result, a dark fleet of tankers carrying oil from Russia has emerged to skirt the sanctions, creating a link with Denmark. In response, the coalition has reportedly contemplated tabbing Denmark with an audacious role of enforcing the price cap by inspecting Russia-connected tankers as they move through the Danish Straits. The authors address the controversy by discussing the commercial maritime context alongside the corresponding treaty-based framework governing the proposed Danish intervention. They argue that while the prospect of a price cap enforcement overhaul is a worthwhile conversation, the present enforcement proposal is conceptually flawed.
Read the full analysis here.
In his post titled ‘A Fossil Fuel Ban Treaty: Corrective Treaty-Making Beyond Consensus,’ Jochen von Bernstorff explores the idea of a new fossil fuel treaty. Following the intense negotiations that took place at COP28 and the adoption of the rather vague central decision, the author stresses the need to take an alternative course of action, even if some countries refuse to participate. Von Bernstorff contends that the new fossil fuel treaty should ban all exploration and exploitation of new fossil fuel resources while including common but differentiated obligations regarding the phase-out of current extraction. Under the treaty, member states would be obliged to ban further exploration and the import of fossil fuels extracted from new fields and mines. Although the treaty might not be widely recognized, the author finds it would put political pressure on governments to stop fossil fuel exploitation and redirect global financial investment from fossil fuels to renewable energy, in addition to its normative and symbolic effect.
Read the full post here.
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