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Litigating the Climate between National and International Human Rights Regimes
Pane G.
Q3
Abstract
This paper identifies the architecture of the justiciability of the right to a healthy environment, analysing the contribution of national and international regimes in climate litigation. It argues that neither the former nor the latter alone can currently offer a fully implementable set of remedies to the catastrophic consequences of environmental degradation. In all the cases, collectiveness is a parameter that needs to be taken into consideration, and which is shaping the way most of successful environmental claims are framed. This calls for a reflection on what courts can contribute, and maybe also if they should contribute at all, in the absence of explicit political will in the form of a specific binding treaty. It is concluded that through the interaction between domestic and international courts we can envisage a full coverage of the rights involved.
The World Health Organization’s Response to the Health Emergency and its Impact on Investment Arbitration and Human Rights Case Law
Faccio S.
Q3
Abstract
The paper discusses the potential impact of the World Health Organisation (WHO)’s recommendations and guidelines on the assessment of the State’s right to regulate by investment tribunals, and on the assessment of the State’s decision to limit and/or suspend certain human rights for reasons of public interest and in cases of emergency by human rights Courts.
International Community? What International Community?
Gazzini T.
Q3
Abstract
The expression “international community” is ubiquitous in international legal instruments, government policies, jurisprudence and scholarship. Yet, its meaning, significance and repercussions in international law are still unclear. The departing point of the analysis is the horizontal or decentralized character of the international legal order, which lacks any authorities above States and has traditionally been the kingdom of bilateralism. In the second part of the XX Century, however, States moved beyond bilateralism and accepted the existence of obligations owned to the international community as a whole. The paper looks at such historical development from three different perspectives: (a) the definition(s) of “international community” in State practice and its possible identification with the United Nations; (b) the legal implications of the emergence in international jurisprudence and practice of obligations owned to the international community as a whole, as celebrated in the Barcelona Traction Case (1970); and (c) the rules governing international responsibility for breaches of those obligations, which were not completely defined in the International Law Commission’s Articles on State Responsibility (2001).
Climate Change and its ‘Grotian’ Effects on a Principle of Corporate Liability in International Law
Chiussi Curzi L.
Q3
Abstract
As climate change hazards keep intensifying, there seems to be an increasing recognition that corporations are not immune from international obligations on the protection of human rights and the environment. The present article argues that the climate crisis might be contributing, as a ‘Grotian Moment’, to the crystallisation of an already developing principle on corporate liability for human rights and environmental violations. After a brief account of the long-lasting debate on the existence and nature of corporate obligations under international law, the relevant business and human rights (non-binding) instruments will be addressed, highlighting their limits as well as their preparatory role in the ongoing paradigm shift. The ‘Grotian’ implications of climate change will be examined through the lens of climate litigation against companies, which highlights a crucial osmosis between the relevant international standards and domestic legal systems.
Immunities and Criminal Proceedings
Ruozzi E.
Q3
Abstract
When delivering its final judgment in the Immunities and Criminal Proceedings case, the ICJ was faced with a complex situation. The case involved the launch of criminal proceedings against a foreign high-ranking official along with the resulting measures of attachment imposed on embassy premises. While the most controversial aspect probably lay in the ability to determine those persons vested with immunity ratione personae, the dispute also raised issues of diplomatic law, which actually became the predominant questions at stake in the case. The aim of the article is to provide an overall discussion of the dispute, focusing on some specific aspects of the Court’s reasoning. Specifically, it will consider how the interplay among the identification of the facts of the case, the role assigned to customary law and the approach taken by the Court to treaty interpretation can shape the evolution of and outcome to a dispute.
Medical Countermeasures for Pandemic Response and Intellectual Property Rights
Villarreal P.A., Renne G.
Q3
Abstract
The current article addresses the question of whether and under which circumstances access to medical countermeasures against pandemics, such as COVID-19, may constitute a community interest under international law. First, the intertwined concepts of global public goods and community interests are fleshed out. Second, the analysis expounds whether the protection against pandemics, including immunization, can be framed as a community interest, and which obligations would result. Third, the relationship between community interests and intellectual property rights as enshrined in international law is explored. Fourth, the conclusions try to reconcile the goals of international intellectual property rights and the protection against pandemics. Positive obligations to furnish medical countermeasures may not attain the consent of a sufficiently large number of states. Nevertheless, articulating the protection against pandemics as a community interest should entail obligations to refrain from resorting to international intellectual property law to impede developing patent-protected medical countermeasures in other countries.
Epidemics and the Future of International Disaster Law
Bartolini G.
Q3
Abstract
This paper explores the relationship between epidemics and International Disaster Law. In particular the paper addresses some selective examples of legal and operational issues pertaining to International Disaster Law where the increasing concern on health emergencies, dated back to the Ebola crisis, have progressively facilitated the management of tailored initiatives. In particular, in relation to prevention and preparedness, challenges experienced to include biological hazards in universal disaster risk reduction frameworks will be introduced, as well as the dedicated attention to preparedness for epidemics progressively experienced in international coordination disaster management systems. In relation to post-hazard phases, some initiatives aimed at facilitating international relief operations in front of epidemics will be explored, as complemented by international financial instruments factoring epidemics in assistance programs. This overview might thus permit to assess some trends in this area, paving the way for potential further reforms eventually based on developments already introduced in the framework of the COVID-19 pandemic.
Climate Change and Global Health
Negri S.
Q3
Abstract
Climate change is considered potentially the greatest threat to global health in the 21st century due to its direct and indirect adverse impacts on human health and its environmental determinants. Synergies between international regimes regulating climate change and human rights protection can provide the appropriate legal tools to hold States responsible for their contribution to climate change, notably in terms of failure to adopt effective and appropriate measures of mitigation and adaptation capable of preventing climate-induced health risks. In this respect, recent trends in international practice suggest that the right to health argument has the potential to play a pivotal role in climate litigation before international courts and human rights bodies, which are increasingly called to adjudge complaints filed by youth petitioners fighting for global climate change action.
General Principles of Procedural Law in the Practice of the WTO Appellate Body
de Andrade M.C.
Q3
Abstract
The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.
Recent Trends in Investment Arbitration Concerning Legitimate Expectations
Farnelli G.M.
Q3
Abstract
The article addresses how the obligation not to frustrate legitimate expectations has been interpreted and applied in recent investment disputes arising out of amendments in domestic regimes in the renewable energies sector. The analysis will address cases against Czechia, Italy and Spain, the Countries currently facing the majority of disputes for alleged breaches of the Energy Charter Treaty. Jurisdictional issues related to the case law at hand, such as those stemming from intra-EU arbitration, will not be addressed. The contribution is divided in three parts, next to the introduction. First, the notion of legitimate expectations will be analysed. Second, the Czech, Italian and Spanish cases will be addressed, briefly sketching the respective domestic legal frameworks. As a conclusion, it will be suggested that tribunals have considered the fact that a State is exercising its regulatory power, and a potential lack of investors’ due diligence, in diminishing the quantum of compensation, and that such case law adds to the establishment of general “interpretative elements” of FET.
Changing Customary Law
Kleczkowska A.
Q3
Abstract
The unwritten nature of customary international law (CIL) enables it to remain flexible and easily adaptable to changes in States practice and opinio juris, but at the same time may be the source of substantial uncertainties when it comes to the formation, identification and development of customary norms. To investigate this issue, this paper examines the attitudes adopted by States in the aftermath of the airstrikes conducted in Syria by the USA, the UK and France in 2017 and 2018, respectively. The paper is divided into two parts: the first part includes a brief summary of the statements made by States, including the intervening States, after the 2017 and 2018 airstrikes, while the second part is devoted to the analysis of how CIL may have been influenced by the reaction of States to the airstrikes.
Interpretation of the Meaning of ‘Direct Effect’ in the Revised Treaty of Basseterre
Phillips Z.A.
Q3
Abstract
The article utilises the Vienna Convention on the Law of Treaties (VCLT) rules of interpretation to determine the meaning of ‘direct effect’ within the Revised Treaty of Basseterre (RTB). The RTB is the constituent treaty of the Organisation of Eastern Caribbean States (OECS). Despite the RTB having been in force since 2011 there has not been a single contentious case regarding the interpretation of the RTB. While the RTB and the OECS gained some inspiration from the European Union (EU), the Commonwealth Caribbean adheres to the dualist doctrine in the practical relationship between international and domestic law. As such, the meaning of ‘direct effect’ has been the subject of controversy. Therefore, this article shall discern the meaning of ‘direct effect’ within the RTB, including delineating possible practical application. The evaluation shall reveal that the definition is the same, however, due to the Caribbean context the application differs in slight ways.
The Role of International Investment Law in the Business and Human Rights Legal Process
Chiussi L.
Q3
Abstract
This article examines the interplay between international investment law and international human rights law in order to assess whether the former can be used to foster corporate accountability for violations of human rights. The role of international investment agreements in ensuring corporate compliance with human rights will be addressed, together with the approach to human rights violations of corporations by international investment tribunals. Whilst acknowledging some inherent limits of IIL, the underling argument of the paper is that rebalancing rights and obligations of investors may give teeth to corporate human rights accountability, while also benefitting the legitimacy of IIL.
Protect, Respect and Remedy: A Framework for Accountability for Human Rights Violations Committed by Foreign Fighters
Mahfoudh H.B.
Q3
As the phenomenon of foreign fighters is taking new dimensions by the rise of autonomous terrorist groups, mainly the group calling itself ‘Islamic state’ (also known as Daesh or isil), most of these individuals are perceived as a serious security threat to the peace and justice in the world. Such security perception made current efforts to deal effectively with this complex problem confined within the existing counter-terrorism fora including the United Nations (un). The u.n. framework of Mercenaries does not seem the right venue for an effective accountability framework. Beyond the conceptual debate – whether Foreign Fighters is a new form of mercenarism – the regulatory framework offer various venues for the protection of human rights. Instead of constructing an accountability mechanism from scratch, this paper calls for the application of the dual obligation to protect and respect, which focuses on victims rights, regardless the nature, the type of the author of the crime.
Foreign Investors and the Colombian Peace Process
Gomez-Suarez A., Perrone N.M., Prieto Ríos E.
Q3
The International Investment Regime (iir) materialises in international arbitral tribunals that protect the rights of foreign investors. Could these tribunals hamper the implementation of exceptional measures agreed to end armed conflicts? The principle of proportionality, usually employed to balance competing demands such as the interests of international investors and the right of states to self-determination, could fall short when it comes to the concept of a nation and a society’s right to peace. Focusing on the Colombian peace process, this article argues that the agreement on land redistribution, a cornerstone of the peace agreements, benefits the whole society, including foreign investors. However, the colonialist nature of the iir could lead foreign investors, who see their investments and expected profits affected, to demand compensation for governmental land acquisition. The Colombian case suggests powerful lessons for the willingness of transitional states to defend their people’s right to peace in international tribunals.
International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis
Tanzi A.
Q3
The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.
The Privatisation of ‘the Core Business of un Peacekeeping Operations’: Any Legal Limit?
Sossai M.
Q3
The purpose of the present analysis is to investigate whether the law of collective security could play a normative function in the determination of which services may or may not be outsourced in the context of un peacekeeping operations. The key question is whether pmscs should only perform those activities instrumental to the life of the un, or should also cover those functions that are a direct expression of the competences attributed to it for the maintenance of international peace and security. The point is made that since peacekeeping is aimed at preserving fundamental values of the international community, peace and increasingly human rights, pmscs might play a part in it, but only in a secondary way.
Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)
Negri S.
Q3
Abstract
In the judgment delivered in the case concerning Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice held that under the present state of international customary law State immunity encompasses all acta jure imperii, regardless of whether they are unlawful. Following the ruling that States are entitled to jurisdictional immunities before foreign courts even if their sovereign acts amount to violations of peremptory norms, the Court found that Italy had violated Germany’s immunity from jurisdiction and enforcement. In rendering such a conservative judgment, the Court missed a double opportunity: to contribute to the development of international law by interpreting the rule on sovereign immunity in harmony with international human rights law and its dynamics, and to finally serve justice for the victims of war crimes.
Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone
Farnelli G.M.
Q3
Abstract
This article stems from a recent decision of the Indian Supreme Court concerning whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of killing two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study also critically examines the operational decision of the Indian Supreme Court in providing for the establishment of a specific domestic court deemed competent to entertain its jurisdiction over the cause in view of its international nature.
The Sempra Annulment Decision of 29 June 2010 and Subsequent Developments in Investment Arbitration Dealing with the Necessity Defence
Cristani F.
Q3
Abstract
On 29 June 2010, an ad hoc International Centre for Settlement of Investment Disputes (ICSID) Annulment Committee annulled the 2007 Sempra Award for manifest excess of powers (within the meaning of the ICSID Convention), as it found that the Tribunal had failed to apply the correct law. The decision took into account the measures adopted by the Argentine Government to face the 2001 economic and political crisis and (like other previous awards and decisions on similar cases) raised the issue of the interpretation and application of the necessity defence in situations of economic emergencies. The approach of the ad hoc Committee on this particular point is the main focus of this note.
