The last two weeks have primarily grappled with the implications of the Chişinău Declaration, along with Israel’s continued policies concerning occupied Palestine: the establishment of ad hod military courts and its blockade of the Sumud Flotilla. Criminal proceedings in Iranian courts around the Minab school bombing raise questions about the prosecution of war crimes in the absence of domestic legislation. And the previous fortnight’s focus on the law of the sea remains—only now we drift up from the deep and its imagined seabed mines to older jurisdictional questions of UNCLOS’s relationship to general international law, as well as Greece’s experimental move to manage the risks of maritime delimitation disputes through offshore lease agreements. We pause also for a reflection on the genealogy of ecocide, and its fraught conceptual relationship to genocide—not to mention episode 44 of the podcast, pulling focus on how international law organises the global energy economy at the centre of the war in the Middle East.
Chişinău Declaration
The Council of Europe’s Chișinău Declaration of 15 May 2026 urged the European Court of Human Rights to adopt a more restrained interpretation of Article 3 ECHR in migration and non-refoulement cases. A number of commentators take us into the details and its implications.
Marten Breuer takes us into the “living instrument” doctrine, making the case that the Declaration’s invocation of the doctrine implicitly invites the Court to reduce Convention protections in migration cases by adapting its jurisprudence to contemporary political pressures. He contrasts this with the Court’s established case law in Tyrer, Selmouni, Bayatyan, and KlimaSeniorinnen, arguing that the living instrument doctrine has historically operated only to expand, not diminish the protection afforded by the ECHR. While the Court may recalibrate Convention rights through mechanisms such as proportionality analysis, Article 15 ECHR, or the incremental development of case law, using evolutive interpretation to lower substantive human rights standards would undermine the counter-majoritarian function of the Convention and sit uneasily with the restrictive approach to changed circumstances reflected in Article 62 of the Vienna Convention on the Law of Treaties. Any regression in Convention protection should rest on compelling legal justification rather than shifting political consensus: adopting the Declaration’s approach would risk compromising the Court’s legitimacy and independence under Article 32 ECHR.
Ezgi Yildiz, Umut Yüksel and Collin Lucken draw on a dataset of 14,196 Article 3 judgments from 1967 to 2025 to argue that the Court has already shifted toward greater state deference in non-refoulement cases, even as violation findings have increased across other Article 3 categories, such as torture and detention conditions. This indicates a bifurcated jurisprudential trend, linked to political pressure on the Court, especially since the 2011 Izmir High-Level Conference. The Declaration seeks to formalise an existing, quietly implemented judicial retreat in migration cases, while also advancing broader doctrines of subsidiarity and “democracy capable of defending itself” to justify expanded state discretion. This represents an attempt at institutional reconfiguration of the Strasbourg system through coordinated state pressure, with potential long-term implications for the balance between judicial independence and member state control over Convention interpretation.
Following a similar instinct to contextualise, Jens Theilen suggests that the Declaration, and the earlier “letter of the nine”, form part of a broader process of “fascization” in European migration governance, reflecting an intensifying politics of anti-migrant exclusion directed at reshaping the interpretive framework of the ECHR and the jurisprudence of the Court. Building on a dataset of scholarly and civil society responses, he agrees with Ezgi, Umut, and Collin that the Court has already adopted a relatively deferential approach in migration and non-refoulement cases under Article 3 ECHR—but that political pressure seeks to further entrench and normalise restrictive interpretations, particularly regarding expulsion and asylum protection. These developments can be read within broader patterns of racialised “pushback over otherness,” linking migration control to intersecting forms of exclusion and dehumanisation. Liberal human rights discourse risks obscuring these structural dynamics by overemphasising institutional value or progress narratives. Viewing these developments through the lens of fascization reveals continuities between liberal legal institutions and exclusionary political projects. Jens calls for a more explicitly anti-fascist politics that challenges both state-driven migration restrictions and the underlying hierarchies embedded in the European human rights system.
Gaza: Sumud Flotilla blockade
Frederik Rogiers examines the legality under international humanitarian law of Israel’s April and May 2026 interceptions of the Global Sumud Flotilla in international waters near Crete and Cyprus, arguing that while a naval blockade of Gaza may in principle remain available under the law of occupation and Common Article 2 of the Geneva Conventions, its enforcement is subject to strict humanitarian and geographic constraints. Revisiting the San Remo Manual, the Newport Manual, the 1909 London Declaration, the Mavi Marmara inquiries, and the ICJ’s 2024 and 2025 Advisory Opinions on the Occupied Palestinian Territory, he contends that the blockade is now difficult to reconcile with obligations under Geneva IV, AP I, and customary international humanitarian law, particularly in light of the ICJ’s provisional measures in South Africa v Israel, the ICC’s November 2024 arrest warrants for the war crime of starvation, and the humanitarian situation in Gaza. Irrespective of the blockade’s underlying legality, there is no post-1945 state practice supporting blockade enforcement hundreds of nautical miles from the blockaded coast, distinguishing Israel’s operations from recognised blockade practice. Interceptions at distances of approximately 250 and 600 nautical miles exceed the permissible geographic scope of blockade enforcement and therefore cannot properly be characterised as lawful exercises of belligerent blockade.
Israel’s ad hoc military court
Smadar Ben-Natan pulls focus on Israel’s newly established ad hoc military court created under the “Law for the Prosecution of October 7 Massacre”. She argues that it departs from established standards of international humanitarian law and human rights law by enabling convictions for genocide and the death penalty on a majority vote, restricting defence rights, and limiting the participation of accused persons in proceedings. Situating the court within a broader historical trajectory of military tribunals—from Nuremberg and Tokyo to Guantánamo—she makes the case that Israel is abandoning its prior reliance on civilian adjudication for serious international crimes in favour of a politicised military justice model that lacks judicial independence and fair trial guarantees, including access to defence counsel and procedural safeguards. This development tracks within a wider pattern of Israeli legislative and institutional changes affecting Palestinians, one part in a wider dual legal system and a broader erosion of procedural protections. The new tribunal represents a departure from established models of international and domestic criminal justice and risks functioning as a mechanism of political narrative construction rather than impartial adjudication of alleged international crimes.
Prosecuting war crimes in Iranian courts
Heybatollah Najandimanesh considers the criminal complaints arising from the 28 February 2026 attack on the Shajareh Tayyebeh primary school in Minab to ask whether Iranian courts can investigate and prosecute alleged war crimes in the absence of a dedicated domestic war crimes offence. He argues that serious violations of international humanitarian law are already established as giving rise to individual criminal responsibility under the 1907 Hague Regulations, the 1949 Geneva Conventions (particularly Article 147 of Geneva Convention IV), Additional Protocol I, customary international law, and Article 8 of the Rome Statute, and that recognition of such conduct is compatible with the principle of legality as reflected in Article 15(2) of the International Covenant on Civil and Political Rights. Article 9 of the Iranian Civil Code and Article 9 of the Islamic Penal Code, read alongside Iran’s treaty obligations and emerging legislative developments, provide a sufficient basis for Iranian courts to characterise alleged conduct as war crimes even in the absence of express statutory codification. The Minab proceedings could become a significant precedent for the domestic application of international criminal law in Iran, clarifying the relationship between international humanitarian law and the Iranian legal order while leaving separate questions of jurisdiction, immunities, and procedural safeguards to subsequent stages of the proceedings.
ITLOS: M/T Heroic Idun (No. 2)
Lan Nguyen and Danae Georgoula analyse the ITLOS Special Chamber’s judgment in M/T Heroic Idun (No. 2), focusing on its treatment of the relationship between jurisdiction and applicable law under Articles 288(1) and 293 UNCLOS where parties invoke external treaties and rules of international law. While welcoming the Chamber’s reaffirmation that Article 293 cannot independently expand an UNCLOS tribunal’s jurisdiction, they argue that the judgment adopts an unduly restrictive approach to the Convention’s “renvoi” provisions, overlooking the different jurisdictional functions performed by provisions such as Articles 2(3), 56(2), 58(2), 87(1) and 297(1)(c) UNCLOS. The Chamber undermines its own reasoning by relying on human rights and due process considerations when assessing the treatment of the vessel and crew, despite having denied jurisdiction to determine breaches of external legal regimes. Rather than clarifying the scope of UNCLOS jurisdiction over external rules, Heroic Idun (No. 2) leaves unresolved inconsistencies regarding the incorporation of non-UNCLOS norms and the proper distinction between jurisdiction and applicable law.
Greece, Chevron, and Offshore lease agreements
Aikaterini Florou argues that Greece’s 2026 offshore lease agreements with Chevron introduce an innovative contractual mechanism (Article 30.3) under which the State compensates investors if a future maritime delimitation reduces the licensed area, effectively converting sovereignty and boundary uncertainty into an allocable commercial risk. The clause departs from traditional stabilization clauses by attaching financial consequences to the exercise of sovereign powers rather than to legislative change. This raises a number of questions under Greek law, EU State aid rules, and arbitral enforceability in light of Micula v Romania, Antin v Spain, and the Lighthouse Arbitration. If contractual remedies prove ineffective, investors could invoke the Energy Charter Treaty, particularly the fair and equitable treatment standard in Article 10(1), despite the complexities created by the EU’s withdrawal, the intra-EU interpretation agreement, and the continuing effect of the ECT’s sunset clause. In light of cases such as SGS v Paraguay, Vivendi I, and Masdar v Spain, Greece’s approach represents a novel attempt to manage maritime delimitation disputes through contract, while highlighting the tension between investment protection and States’ sovereign freedom to conclude maritime boundary agreements under the law of the sea.
Ecocide and genocide
Delving to the roots, Emma Bertipaglia argues that ecocide’s conceptual and political success has depended on a deliberate analogy to genocide, but that this very analogy is now constraining its legal development. Tracing the concept from Arthur Galston’s 1970 coinage through the advocacy of Richard Falk, Polly Higgins, and Stop Ecocide International, she contends that efforts to establish ecocide as a fifth crime under the Rome Statute overlook fundamental doctrinal differences between environmental destruction and genocide. In particular, she critiques the 2021 Independent Expert Panel definition and its “wantonness” proportionality test, arguing that it may legitimise rather than deter large-scale environmentally harmful activities where economic benefits are deemed to outweigh ecological damage. Ecocide is more likely to achieve practical impact through a pluralistic framework, such as including domestic criminalisation, human rights instruments, and evolving prosecutorial practice: for example, the ICC Office of the Prosecutor’s 2025 Policy, the EU Environmental Crime Directive, or national legislation. An amendment of the Rome Statute will not suffice.
EJIL: The Podcast! Episode 44: One Strait, Many Chokepoints: International Law and the New Geopolitics of Energy
In this episode, Justina Uriburu (University of Manchester) is joined by Jorge Viñuales (Harold Samuel Chair of Law and Environmental Policy at the University of Cambridge) and Sergio Puig (Chair in International Economic Law at the European University Institute and Evo DeConcini Professor of Law at the University of Arizona). They take the recent energy crisis triggered by the war in the Middle East as their point of departure, zooming in on how international law organises the global energy economy at the centre of this war and zooming out to ask what role it plays in the deeper structural shift now underway. From the old geopolitics of oil and gas, this episode traces a path to a new geopolitics of energy—and perhaps, as one of our guests puts it, from climate law to international energy law.
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