Khaled Elmahmoud highlighted the International Tribunal for the Law of the Sea’s reluctance to engage with international human rights law in its advisory opinion delivered on 21 May 2024. He outlined potential avenues through which the tribunal could have more effectively incorporated international human rights law into its opinion, focusing on the concept of ‘considerations of humanity’ and the principle of systemic integration.
Japan
Chris Wold discussed a recent development: Japan’s expansion of its whale hunt to include 59 fin whales. Wold claimed that Japan made this decision without consulting the International Whaling Commission or other concerned states and without assessing the potential impacts of hunting a shared resource. He argued that Japan breached its duty to cooperate and conduct a transboundary environmental impact assessment.
European Court of Human Rights
Two posts analysed the judgment handed down by the European Court of Human Rights in the first inter-state case brought by Ukraine against Russia concerning the treatment of different groups of people in Crimea by Russian occupying authorities. Kanstantsin Dzehtsiarou dissected the Court’s findings, calling the judgment ‘a clear and undeniable victory for Ukraine.’ For his part, Marko Milanovic focused on the Court’s approach to the question of territorial sovereignty over Crimea and its status as an occupied territory. He summarised the Court’s approach as one under which ‘every single restriction on human rights by Russia after the occupation started in 2014, even if it could otherwise be justified, will count as a violation because it transgresses the principle of legality’, while expressing doubts about whether this conclusion is the right one.
International Refugee Law
Tilman Rodenhäuser and Padmaja Menon addressed an unresolved legal question: the absence of an agreed legal standard to determine when a refugee or asylum seeker’s return is truly voluntary, and the lack of a clear line at which state actions to ‘incentivize’ or ‘induce’ returns amount to refoulement. They admitted that ‘while there does not seem to be a uniform view among States on whether international law prohibits “constructive” refoulement’, experts have identified situations in which prohibited acts of ‘constructive’ refoulement might be committed.
Sanctions
Marina Aksenova examined whether EU-targeted sanctions deliberately blur the line between administrative and criminal law ‘by imposing “punishment-like” treatment on individuals without the guarantees of a criminal trial.’ She structured her analysis around the EU General Court’s recent annulment of the inclusion of Petr Aven and Mikhail Fridman in a sanctions list. She explained that, according to the General Court, the EU Council did not demonstrate that these individuals supported actions or policies undermining or threatening Ukraine’s territorial integrity, sovereignty, and independence. Aksenova praised the decisions for representing ‘a more sober assessment of the level of legal guarantees afforded to everyone’.
Citizenship
Gaiane Nuridzhanian examined the United Nations Human Rights Committee’s decision in Bratsylo and others v. Russia, which addresses human rights violations resulting from the application of Russian law in Crimea following its annexation in 2014. She compared the Committee’s findings on the forced imposition of citizenship on the population of an annexed territory – in her view, a novel issue in human rights law – to the treatment of similar questions by the International Court of Justice and the European Court of Human Rights.
Global Health
Caroline Foster discussed the Revised International Health Regulations, adopted by the World Health Assembly on 1 June 2024, and the proposal for a Pandemic Agreement. She focused on the dimensions of compliance and accountability, arguing that neither instrument sufficiently addresses the conditions needed for effective implementation. In her words, ‘[t]he compliance mechanisms we see are a patchwork, they involve no independent expert scrutiny of States, they are underdeveloped, and nowhere do they indicate any sanction for failures in implementation and compliance.’
International Court of Justice
Marina Fortuna directed attention to three cases on the ICJ’s docket where applicant states have relied on statements made by officials of respondent states on social media platforms – Facebook, X (Twitter), or Telegram – as evidence, which present a scenario that differs from previous instances of reliance on traditional public statements by state officials. She anticipated what we can expect from the Court’s assessment of the admissibility and probative value of this type of evidence.
International Criminal Law
Kate McInnes spotlighted the recent decision by Liberian President Joseph Boakai to establish a UN-backed war crimes court, describing it as a ‘historic achievement’ and ‘the culmination of years of advocacy’ to investigate and prosecute gross violations of human rights and humanitarian law during Liberia’s two civil wars. However, she issued words of caution, suggesting that the Liberian tribunal should learn from the Special Court for Sierra Leone’s shortcomings and successes. In particular, she proposed that ‘there must be a recognition of the SCSL’s institutional failure to accord legal or moral significance to crimes committed against persons with disabilities during that country’s conflict, and the subsequent inability of Sierra Leoneans with disabilities to enjoy the full expressive value of the law.’
***
Recent events and announcements can be found here.
Two Weeks in Review, 17 June – 30 June
Written by Justina UriburuITLOS
Khaled Elmahmoud highlighted the International Tribunal for the Law of the Sea’s reluctance to engage with international human rights law in its advisory opinion delivered on 21 May 2024. He outlined potential avenues through which the tribunal could have more effectively incorporated international human rights law into its opinion, focusing on the concept of ‘considerations of humanity’ and the principle of systemic integration.
Japan
Chris Wold discussed a recent development: Japan’s expansion of its whale hunt to include 59 fin whales. Wold claimed that Japan made this decision without consulting the International Whaling Commission or other concerned states and without assessing the potential impacts of hunting a shared resource. He argued that Japan breached its duty to cooperate and conduct a transboundary environmental impact assessment.
European Court of Human Rights
Two posts analysed the judgment handed down by the European Court of Human Rights in the first inter-state case brought by Ukraine against Russia concerning the treatment of different groups of people in Crimea by Russian occupying authorities. Kanstantsin Dzehtsiarou dissected the Court’s findings, calling the judgment ‘a clear and undeniable victory for Ukraine.’ For his part, Marko Milanovic focused on the Court’s approach to the question of territorial sovereignty over Crimea and its status as an occupied territory. He summarised the Court’s approach as one under which ‘every single restriction on human rights by Russia after the occupation started in 2014, even if it could otherwise be justified, will count as a violation because it transgresses the principle of legality’, while expressing doubts about whether this conclusion is the right one.
International Refugee Law
Tilman Rodenhäuser and Padmaja Menon addressed an unresolved legal question: the absence of an agreed legal standard to determine when a refugee or asylum seeker’s return is truly voluntary, and the lack of a clear line at which state actions to ‘incentivize’ or ‘induce’ returns amount to refoulement. They admitted that ‘while there does not seem to be a uniform view among States on whether international law prohibits “constructive” refoulement’, experts have identified situations in which prohibited acts of ‘constructive’ refoulement might be committed.
Sanctions
Marina Aksenova examined whether EU-targeted sanctions deliberately blur the line between administrative and criminal law ‘by imposing “punishment-like” treatment on individuals without the guarantees of a criminal trial.’ She structured her analysis around the EU General Court’s recent annulment of the inclusion of Petr Aven and Mikhail Fridman in a sanctions list. She explained that, according to the General Court, the EU Council did not demonstrate that these individuals supported actions or policies undermining or threatening Ukraine’s territorial integrity, sovereignty, and independence. Aksenova praised the decisions for representing ‘a more sober assessment of the level of legal guarantees afforded to everyone’.
Citizenship
Gaiane Nuridzhanian examined the United Nations Human Rights Committee’s decision in Bratsylo and others v. Russia, which addresses human rights violations resulting from the application of Russian law in Crimea following its annexation in 2014. She compared the Committee’s findings on the forced imposition of citizenship on the population of an annexed territory – in her view, a novel issue in human rights law – to the treatment of similar questions by the International Court of Justice and the European Court of Human Rights.
Global Health
Caroline Foster discussed the Revised International Health Regulations, adopted by the World Health Assembly on 1 June 2024, and the proposal for a Pandemic Agreement. She focused on the dimensions of compliance and accountability, arguing that neither instrument sufficiently addresses the conditions needed for effective implementation. In her words, ‘[t]he compliance mechanisms we see are a patchwork, they involve no independent expert scrutiny of States, they are underdeveloped, and nowhere do they indicate any sanction for failures in implementation and compliance.’
International Court of Justice
Marina Fortuna directed attention to three cases on the ICJ’s docket where applicant states have relied on statements made by officials of respondent states on social media platforms – Facebook, X (Twitter), or Telegram – as evidence, which present a scenario that differs from previous instances of reliance on traditional public statements by state officials. She anticipated what we can expect from the Court’s assessment of the admissibility and probative value of this type of evidence.
International Criminal Law
Kate McInnes spotlighted the recent decision by Liberian President Joseph Boakai to establish a UN-backed war crimes court, describing it as a ‘historic achievement’ and ‘the culmination of years of advocacy’ to investigate and prosecute gross violations of human rights and humanitarian law during Liberia’s two civil wars. However, she issued words of caution, suggesting that the Liberian tribunal should learn from the Special Court for Sierra Leone’s shortcomings and successes. In particular, she proposed that ‘there must be a recognition of the SCSL’s institutional failure to accord legal or moral significance to crimes committed against persons with disabilities during that country’s conflict, and the subsequent inability of Sierra Leoneans with disabilities to enjoy the full expressive value of the law.’
***
Recent events and announcements can be found here.
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