In the wake of a new year, EJIL: Talk! has featured posts tackling a wide array of pressing issues, including international criminal justice, environmental law, the Russia-Ukraine war, human rights, investment review mechanisms, and more—some of which continue to trace the lasting impacts of key events of the past year. Wishing our readers happy holidays and a peaceful new year to all.
International Criminal Justice
Fuad Zarbiyev critiques the inequality embedded in international law, particularly focusing on how it often favors powerful nations. He compares the term “expat” to international law’s surface egalitarianism, where laws appear neutral but disproportionately benefit the Global North. The author notes that this disparity is evident in institutions like the International Criminal Court (ICC), which primarily prosecutes officials from Global South countries, while powerful states evade accountability. Zarbiyev highlights the ICC’s recent arrest warrants for Israeli officials Netanyahu and Gallant as a “Nicaragua moment,” drawing parallels to the 1986 International Court of Justice ruling against the U.S. for its actions in Nicaragua. Further, these arrest warrants signify a breakthrough, sending a message that no country, regardless of power, is immune from facing justice for international crimes. Zarbiyev emphasizes that while international law’s language may be egalitarian, it can also be used as a tool of resistance against powerful nations. Read the full post here.
Michelle Burgis-Kasthala asserts that with the fall of Bashar al-Assad’s regime, Syria faces a critical moment for accountability. The author notes that while international justice mechanisms struggle, new forms of “entrepreneurial justice” are emerging, with civil society and non-governmental organizations leading efforts to document crimes and push for justice through universal jurisdiction and other alternative avenues. Burgis-Kasthala asserts that the priority now should be to secure evidence and witnesses for future trials, as these efforts could set a precedent for holding perpetrators accountable and preventing impunity. Read the full post here.
Nicole De Silva and Mary Amadi explore the revived advocacy for the creation of an African Criminal Court following the 10th anniversary of the Malabo Protocol. The Court would expand the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include international crimes and corporate liability but has been criticized for granting immunity to heads of state and senior officials. Read the full post here.
Milieudefensie vs. Shell
Carlo Vittorio Giabardo analyzes the 2024 Hague Court of Appeal decision in the case Milieudefensie v. Shell, in which it upheld the company’s duty to reduce emissions, including Scope 3 emissions, and concluded that the specific reduction targets could not be judicially determined. The decision affirmed that corporations have a broader “social duty of care” to align with international climate goals beyond compliance with existing laws. The court also rejected Shell’s argument that it should not be responsible for Scope 3 emissions, emphasizing that companies must limit both supply and demand for fossil fuels. The ruling ultimately calls for differentiated climate responsibilities, recognizing that companies’ reduction obligations should vary according to their sector and pollution levels. The author concludes with a reflection on the limitations of judicial processes in addressing complex, transnational climate challenges, urging coordinated efforts across all stakeholders. Read the full post here.
Paula Nieto examines the Milieudefensie et al. v. Shell decision, focusing on the Court’s acceptance of the Market Substitution Argument, which claims that if Shell reduces its fossil fuel production, other companies will step in, and emissions will not decrease. The author argues that this reasoning imposes an unreasonably high causal standard and undermines the justiciability of Scope 3 emissions cases by ignoring the collective nature of climate harm. Drawing comparisons to collective harm scenarios and preemption cases, the post contends that Shell’s actions preempt other companies’ actions, making Shell responsible for its emissions. The author concludes that requiring a but-for causal link is overly demanding and calls for a more flexible, tailored approach to climate change tort cases inspired by human rights law principles. Read the full post here.
International Environmental Law
Veronica Botticelli examines the ICJ’s handling of environmental harm as racial discrimination under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the Azerbaijan v. Armenia case, where the Court dismissed Azerbaijan’s claims that Armenia’s environmental actions constituted racial discrimination. The ICJ concluded that the alleged harm, such as water mismanagement and deforestation, did not involve ethnic or racial targeting, as both Armenian and Azerbaijani populations were affected. Dissenting judges criticized the Court for narrowly interpreting CERD and urged a broader approach that would allow such claims to be examined at the merits stage. The article highlights the growing intersection between environmental harm and human rights, advocating for a more progressive interpretation of CERD to address contemporary global challenges effectively. Read the full post here.
Corina Heri examines the ECtHR’s KlimaSeniorinnen judgment and the ongoing debate over whether it created an “actio popularis”—a public interest complaint not based on harm to specific individuals. Heri contends that the judgment reflects an overarching intergenerational consideration but does not extend the Convention’s scope to future generations’ rights. Heri maintains that the representative standing granted to the KlimaSeniorinnen association can be seen as valid, as it represented individuals who were directly affected by climate change, albeit not meeting the Court’s strict victim status test for climate cases. The author finds that this interpretation, as opposed to others, aligns better with existing case law and avoids allegations of judicial activism or “actio popularis.” Read the full post here.
Russia-Ukraine
Gregory Fox discusses the legal complexities surrounding a potential Russia-Ukraine peace agreement, focusing on issues such as territorial changes, coercion, and the role of international law. He argues that contemporary peace agreements lack a unified legal framework, with some provisions potentially being invalidated due to coercion under the Vienna Convention on the Law of Treaties (VCLT) and violations of jus cogens norms, like the prohibition of territorial annexation by force. Fox also examines the challenges of addressing war crimes and amnesties for Russian officials, suggesting that while the UN Security Council could endorse a peace agreement, it cannot cure legal defects if they violate fundamental international norms. Read the full post here.
International Human Rights Law
Margarita S. Ilieva critiques the European Court of Human Rights’ (ECtHR) approach to cases involving survivors of gender-based violence (GBV) and discrimination, asserting that the Court undermines survivors’ autonomy and control over their narratives. The author contends that the ECtHR took a dismissive approach to certain claims, particularly on politically sensitive issues, and revictimizes survivors by stripping them of the power to define their victimhood and determine the scope of their legal remedies. The author further calls for a paradigm shift in ECtHR law, advocating for a survivor-centered approach that empowers victims and ensures their full participation in the justice process. Read the full post here.
Raphaelle Gauthier critiques the privatization of marine conservation efforts through financial instruments like Blue Bonds and their negative impact on Indigenous and local communities. Gauthier highlights the inadequate consultation processes, lack of transparency, and the violation of Free, Prior, and Informed Consent (FPIC) standards, which can harm marginalized groups’ livelihoods, rights, and autonomy. The author calls for rethinking the current debt swap models to ensure meaningful community participation, respect for human rights, and equitable outcomes. Read the full post here.
Diane Desierto highlights the inadequate protections afforded to mothers under international law, whose unique vulnerabilities are often overlooked, focusing on lifelong protections. Desierto examines how crises like pandemics, conflicts, and natural disasters disproportionately burden mothers, forcing them into impossible roles without adequate support. Desierto calls for comprehensive legal frameworks to address these systemic inequities and ensure mothers are equipped to prosper through global challenges. Read the full post here.
Ocean Governance
Ríán Derrig discusses a proposal for establishing the Intergovernmental Platform for Ocean Sustainability (IPOS), which is being debated as a new mechanism in international ocean governance. Derrig explores the broader context of ocean governance reform, highlighting the existing fragmentation in the regulatory system. Derrig critiques IPOS for focusing solely on unifying scientific knowledge and avoiding the political dimensions of ocean governance hampering its effectiveness. Additionally, Derrig raises concerns about the unclear role of IPOS regarding capacity-building obligations under international treaties, suggesting that a redefined role for IPOS could address these issues and improve its impact on global ocean governance. Read the full post here.
International Investment Law
Victor Crochet and Weihuan Zhou examine the rise of outbound investment screening mechanisms, primarily developed by the U.S. and China, as part of a technological arms race. These mechanisms aim to prevent the transfer of advanced technologies that could enhance a foreign country’s technological capabilities, especially in sensitive fields like semiconductors, quantum information, and AI. The authors highlight the absence of international regulation governing outbound investments, contrasting it with the established rules for inbound investment and trade in goods under the WTO and other treaties. The authors further call for the development of international legal frameworks to address the growing impact of these screening measures on global investment flows. Read the full post here.
UN Military Manual
Dimitrios Papantoniou examines the United Nations Military Manual, published in September 2024, which serves as a guide for military personnel in UN peacekeeping missions. Papantoniou highlights the Manual’s contribution to international law as a necessary publication for military authorities, policymakers, and peace operations planning. The author argues that the Manual successfully offers strategic guidance for the effective conduct of armed components throughout the stages of United Nations operations. Read the full post here.
Giulio Bartolini discusses the UN General Assembly’s adoption of resolution A/C.6/79/L.16, which sets the stage for the negotiation of a universal treaty on the protection of persons in the event of disasters, with a target for completion by 2027. Based on the 2016 draft articles developed by the International Law Commission (ILC), the treaty will aim to address gaps in the international legal framework revealed by past disasters, such as the 2004 tsunami. The treaty negotiations will focus on clarifying key issues like state sovereignty, consent for international assistance, and the facilitation of relief efforts to establish a comprehensive, legally binding framework for disaster relief. The process will culminate in 2027, marking the centenary of the International Relief Union, the first international disaster relief treaty. Read the full post here.
See Joseph Weiler’s 10 Good Reads of 2024 here.
Recent events and announcements can be found here.
