Technology
Massimo Marelli explains the decision to open an ICRC delegation in Luxembourg dedicated to cyberspace and it’s necessary for the humanitarian sector and the ICRC, to explore and engage in policy-making; legal and technological efforts to prevent and mitigate digitally-enabled harm; and to safeguard humanitarian organizations from digital threats. The author emphasizes how the Delegation will be a concrete tool to identify digital challenges and threats while ensuring that innovation supports instead of undermining operations. The Delegation aims to conceptualize, design, and set up the safe, neutral, impartial, and independent infrastructure that we will serve as a testing ground for various R&D initiatives, and to accelerate progress on pressing issues, such as the development and testing of biometric technology that addresses the challenges and risks for affected persons, and to ensure that they can be used in a responsible manner.
Read the full post here.
In her post, ‘Politicization of the 5G rollout: Litigation way for Huawei?’, Iryna Bogdanova explores restrictions placed on Chinese tech companies in the context of 5G infrastructure, focusing on the economic implications and national security risks. Bogdanova argues that:
‘The idea of restricting access to the supplier, e.g. Huawei, who offers the lowest price on the market is antithetical to the free-market principles underpinning the global economic order. The invocation of national security to justify such moves only complicates the matter and confirms our assumption that the 5G rollout is politicized. As the national security rhetoric is increasingly infiltrating global economic affairs, being already heralded as a “shift to a new geo-economic world order”, it remains to be seen if the dispute settlement mechanisms created by the international economic order could restrain states from imposing their will on their domestic constituencies as well as their trading partners.’
ECtHR
In his post, ‘Milestone or missed opportunity? The ECtHR Grand Chamber judgment in Fedotova v. Russia on the legal recognition of same-sex couples’, Giulio Fedele analyses the court’s ruling that Russia violated Art. 8 ECHR since it failed to justify the absence of means of legal recognition available for same-sex couples on grounds of public interest. Fedele argues that all in all, the judgment presents the positive aspect that the Grand Chamber confirmed and consolidated its case law on legal recognition of same-sex couples, affirming the existence of a general positive obligation that is de facto binding for every State that does not currently provide for neither equal marriage nor civil unions. Nevertheless, the author concludes that even though the approach taken by the Court was very well-balanced and careful, one might maintain that Fedotova represents a missed opportunity.
Julie Ringelheim analyzes the European Court of Human Rights’ recent judgments in Basu v. Germany and Muhammad v. Spain on racial profiling in identity checks. For the first time, the ECtHR was confronted with alleged racial profiling in police identity checks. Ringelheim finds these decisions disappointing for three reasons: first, the Court’s review of the effectiveness of the investigation in Muhammad appears too superficial; second, in both judgments, the Court refrains from examining the legal framework regulating police activities; and third, it disregards the special difficulties involving in proving discrimination in identity checks.
Read the full post here.
In her post, ‘The withdrawal mystery solved: how the European Court of Human Rights decided to move forward with the cases against Russia’, Julia Emtseva explores the recent judgments from January 24 – Kutaev v. Russia and Svetova and Others v. Russia. While both cases touch upon important aspects of human rights violations (right to fair trial and prohibition of torture in Kutaev and right to private life and freedom of expression in Svetova), Emtseva notes that what makes these cases special is the Court’s explanation of how it plans to procedurally act further with regard to the complaints lodged against Russia.
Read the full post here.
Israel
In her post, ‘Will history repeat itself? Anticipating the ICJ advisory opinion on the legal status of Israel’s occupation and its consequences’, Yael Ronen explores the possible consequences of the ICJ Advisory Opinion on the legal status of Israel’s occupation. Ronen notes the Similarity in circumstances of the present request to those of the 1970 request for an ICJ advisory opinion regarding the Legal Consequences of the Continued Presence of South Africa in Namibia (South West Africa). In this context, the author discusses the obligation of unconditional withdrawal as a consequence of illegality and the obligation of non-recognition by other states, arriving at the conclusion that non-recognition is ineffective in bringing illegal territorial situations to an end:
‘It took 17 years before South Africa capitulated and began to negotiate a territorial withdrawal from Namibia, and even that was prompted primarily by exhaustion from armed conflict rather than by non-recognition. In fact, non-recognition alone has never been effective in inducing states to withdraw from territory that they coveted. As someone other than Einstein famously said, “insanity is doing the same thing over and over again and expecting different results”. To what extent this observation applies in law is yet to be seen.’
Read the full analysis here.
In his post, ‘Israel: Cry, the Beloved Country’, Joseph Weiler voices concerns over the new Israeli government’s plan to reform the judicial system. The four principal suggested reforms include: making all judicial appointments a privilege of the government in power; requiring a supermajority of judges to strike down parliamentary legislation; allowing the Parliament to override constitutional decisions of the supreme court; and, finally, prohibiting the judiciary from using the criterion of ‘unreasonableness’ or even extreme unreasonableness when scrutinizing actions of ministers and public servants. Weiler argues the cumulative effect of the planned reform is to dismantle fundamental features of the separation of powers and of checks and balances.
Read his full post here.
Other posts
In his post, ‘Vessel-Source Marine Pollution and the Non-Suspension of Coastal State or Port State Proceedings: Pinpointing Flag States of Repeat Disregard in Article 228 of UNCLOS?’, Arron N. Honniball explores the question of assessing and establishing a flag state of repeat disregard? Honniball concludes that:
‘Exceptions to the primacy of flag State jurisdiction are strictly construed. Article 228 of UNCLOS preserves this primacy through a right of pre-emption against defined foreign State proceedings (Articles 218 and 220) – equally motivating flag States to address violations within six months of said foreign proceedings so as to preserve their primacy. Scepticism in applying the Article 228 exceptions would dissipate with guidance and multilateral tools of common and objective application. However, to date, the rare practice on repeat disregard focuses on opaque executive decisions at the unilateral level (France) or sidestepping Article 228 altogether. Anticipated multilateral tools that might lend weight to a repeat disregard test have significantly developed, but as yet are insufficiently specific or public to demonstrate a proof of concept in the shared application of Article 228. Perhaps revisiting Article 228 as part of 2023’s focus on marine pollution is in order.’
Read the full analysis here.
Andrea Boggio examines the EU boycott of Russian scientists and the right to science in the shadow of Ukraine’s invasion. Boggio argues for scientific freedom and the protection of scientists developing military technology. He explores military science in the context of Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which codifies was has come to be known as the human right to science and the duty “to respect the freedom indispensable for scientific research and creative activity.” Further, the author moves to examine the legitimacy of the EU boycott of Russian scientists under international human rights law. He concludes that: ‘The wrongful conduct of a state would not jeopardize the status and freedoms of scientists who operate in good faith, with the confines of the rules of the funding schemes from which they receive support.’
