Articles for category: AAA General

States‹ Extraterritorial Jurisdiction for Climate-Related Impacts

States’ extraterritorial jurisdiction was one of the hot topics decided by the European Court of Human Rights (ECtHR) in Duarte Agostinho. Strictly speaking, the “lack of it” led the ECtHR to declare the complaint inadmissible with respect to all defendant States except Portugal. This finding is in line with previous ECtHR case law but highlights a gap in human rights protection and creates a mismatch between the ECtHR’s case law and that of the Inter-American Court of Human Rights (IACtHR) and the UN Committee on the Rights of the Child (UNCRC).

12. April 2024

, , , , ,

Climate Litigation Reaches Italian Courts

With Giudizio Universale, climate litigation has found its way to Italy. This case has many aspects in common with the general transnational phenomenon, both in terms of the structure and content of the legal arguments used. The case highlights the difficulties that courts face in view of the high social expectations connected to this kind of proceedings.

12. April 2024

, ,

The High Representative Strikes Again

In March 2024, the High Representative (HR) in Bosnia and Herzegovina (BiH), Christian Schmidt, once again used his “Bonn powers” under the Dayton Peace Agreement which, inter alia, enable him to impose substantial legislation. After a dark warning, he enacted a new package of reforms concerning the electoral process. While these reforms reflect the necessary and desirable changes in the process of the EU accession, concurrently resolving a political stalemate, this schmidtian mode also creates further political cleavages. Nevertheless, arguably a “Smith” has found a fairly clever way forward.

11. April 2024

, , ,

Third Provisional Measures in South Africa v Israel

On March 28, 2024, the ICJ issued its third provisional measures order in South Africa v Israel. The Court ordered further, more pointed, measures towards Israel to ensure the provision of humanitarian aid throughout Gaza. In this blog post, I consider that the right to be heard in the course of this third order has not been fully guaranteed since the ICJ based its ruling on the international reports which were not provided, known, and considered by either of the parties. Moreover, I argue that the ICJ underscored its decision on humanitarian law rather than obligations to prevent genocide.

11. April 2024

, , , , ,

The Digital Public Square meets the Digital Baton

The value a society and its laws place on protecting free speech is arguably most keenly felt where that speech takes a critical turn. Which is why the history of this field is littered with prosecutions and penalties being levied against problematic speech, inviting courts to draw the lines between what is protected and what is not. The past ten years in India demonstrate that when faced with speech that is critical of government policy or state action, the state has become increasingly hesitant to let it remain on air. What is perhaps most alarming for the health of democracy is that, in most cases, there is often a synergy across the three arms of the State that curbing problematic speech is the best course of action to follow.

11. April 2024

, ,

The Meaning of Carbon Budget within a Wide Margin of Appreciation

Although the KlimaSeniorinnen judgment discusses a number of rights of the European Convention on Human Rights (ECHR), including Article 6 (right of access to a court), Article 2 (right to life), and Article 13 (right to an effective remedy), the focus of this blog post is on its discussion of Article 8 (right to private, home and family life). The question raised by that discussion is whether the judgment is one that will “frighten the horses” and lead to oppositional cries of judicial overreach around the separation of powers, or if it is more an unexceptional case of “move on, nothing to see here.” My argument is that the judgment is mostly the latter but that it has what, in computer gaming terms, is known as an “Easter egg” – a hidden element included by the developers to surprise and reward those who look carefully. That could turn out to be more controversial.

11. April 2024

, , , , ,

Catalysts of Eco-Constitutional Evolution

On a lawsuit brought forth by a women’s association of the indigenous Kukama people. The association sought recognition of the intrinsic rights of the Marañón River. The judgement is part of a broader constitutional trend towards recognizing nature’s own rights. This movement is notably being driven by Latin American nations where indigenous perspectives on nature emphasize the intrinsic link between a healthy environment and the realization of human rights, thereby softening the adversarial stance between anthropocentrism and ecocentrism. As such, this jurisprudence may serve as catalyst for the ecological constitutional evolution of Western legal systems.

10. April 2024

, , , , ,

Subordination and Arbitrariness in Citizenship Law

In 2019, the Hindu nationalist Bharatiya Janata Party returned to power in India. The Bharatiya Janata Party oversaw the enactment of the Citizenship (Amendment) Act 2019 (‘CAA’) which gave Hindu, Sikh, Buddhist, Jain, Parsi and Christian (but not Muslim) migrants from Afghanistan, Bangladesh and Pakistan a fast-tracked pathway to Indian citizenship. This post argues that the CAA is unconstitutional, and uses it as an example to clarify two important under-theorised Indian constitutional principles: anti-subordination and arbitrariness.

10. April 2024

,

Enforcement of the Digital Markets Act

Since March 2024, the undertakings Alphabet/Google, Amazon, Apple, Byte-Dance/TikTok, Meta, and Microsoft must comply with the obligations of the Digital Markets Act (DMA). Within the first month after the 6-months implementation period has ended, the European Commission opened investigations against Alphabet/Google, Apple, and Meta for non-compliance with the obligations in the DMA. All proceedings can be traced back to related competition law cases. However, only two proceedings follow the same reasoning as their competition law role models, while the case against Meta reveals that the approaches under the DMA can and will deviate significantly to those under competition law and data protection law.

10. April 2024

, ,

Historic and Unprecedented

The three much-awaited judgments rendered by the European Court of Human Rights on 9 April 2024 are truly historic and unprecedented. In Verein Klimaseniorinnen Schweiz and Others v. Switzerland, the Grand Chamber established that climate change is 'one of the most pressing issues of our times' and poses a threat to human rights. With this ruling, the Court confirmed that States have a positive obligation to adopt measures to mitigate climate change under Article 8 ECHR, the right to family and private life. The judgments will undeniably set the tone for climate litigation in the years to come. It will impact both litigation and other procedures before other international courts.

9. April 2024

, , ,