Climate Change, Human Rights, and Soil Security: The Wider ICJ Advisory Opinion Nexus?

Economic Sanctions Against Human Rights Violations

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

Brief Synopses of New Arabic Language Publications

As commercial space activities surge and plans for permanent extraterrestrial settlements advance, a critical gap has emerged in international law: the absence of enforceable human rights protections for individuals operating beyond Earth. This article examines whether existing international human rights treaties apply extraterritorially to outer space and what obligations exist for states and private actors under current space law. Through doctrinal legal analysis of international treaties, case law, and scholarly commentary, this research reveals that while foundational space law instruments—including the Outer Space Treaty (1967), the Rescue Agreement (1968), and the Moon Agreement (1979)—establish principles of peaceful cooperation and state responsibility, they lack explicit human rights protections essential for addressing contemporary challenges. These challenges include labor rights for space workers, equitable resource allocation, corporate accountability, and protection against exploitation in isolated extraterrestrial environments. Drawing on extraterritorial human rights jurisprudence, particularly from the European Court of Human Rights in Al-Skeini v United Kingdom and the International Court of Justice's advisory opinions, this article argues that human rights obligations follow states beyond terrestrial boundaries wherever they exercise effective control or authority. The article proposes concrete legal reforms, including amendments to existing space treaties, establishment of a UN Human Rights in Space Commission, and development of a Space Human Rights Convention to ensure that fundamental dignities, freedoms, and protections recognized on Earth extend equally to orbit, the Moon, and Mars.

It is a joy and a privilege for me to be here with you allfriends and colleagues of very long standing and new (dare I say "younger"?)colleagues with whom I look forward to forming lifelong friendships.**[Much of the depressing material that we have been discussing has to do not with substance, but with procedurewho can gain access to the courts or legislatures, what statutory or regulatory language will be held to be enforceable at the instance of private plaintiffs, etc.***Although this is not what I am going to discuss, I do want to underscore that access to the courts and legislatures is crucial.I never understand why so-called conservatives want to keep people out of these institutions, for when aggrieved people do not have such access, they are more likely to express their grievances in other ways, often including violence.

Human rights have the pedigree of a distinguished struggle against oppression: everyone shall be treated with respect for their inherent dignity and human worth.3 The horrors of the Second World War provided the legal basis for the modern human rights law. The establishment of the United Nations (UN) signalled the beginning of an international concern for the protection of human rights. Human rights transnational institutions have developed human rights principles, some recognized as jus cogens norms. Nonetheless the application of human rights law in courts is almost always contested. The functions of international courts such as the International Court of Justice (ICJ) are dependant on the States volition and the settlement of disputes between them. Whenever asked by the UN organs and specialized agencies, international courts also give advisory opinions on contentious legal questions. The impact of international jurisprudence on contemporary international law is significant, assessing key areas of international law, such as law of the sea, international environment law and international human rights law. Note that, in this paper we focus on the particular impact of the advisory opinions on the human rights law.

SHIRLEY V. SCOTT, INTERNATIONAL LAW IN WORLD POLITICS: AN INTRODUCTION (BOULDER, COLO.: LYNNE RIENNER PUBLISHERS, 2004). An article from journal Revue québécoise de droit international / Quebec Journal of International Law / Revista quebequense de derecho internacional (Volume 17, Number 2, 2004, pp. 1-317), on Érudit.

INTRODUCTION. The year of 2018 marks with a global celebration of 70th anniversary of Universal Declaration of Human Rights, the landmark international document which represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings which is solemnly proclaimed by the UN member states. The most debatable and ambiguous issue is the determination of the legal status of this essential document. Given the fact that the Declaration was adopted by the UN General Assembly in a form of the resolution, it has a recommendatory character. However, the Declaration which adopted as “standard to which all nations and states should strive to achieve” has undergone a certain legal transformation related to the constant development and refinement in the process of concluding a rich body of legally binding international human rights treaties that affected both domestic and international law. In this regard, the statements on the necessity of recognition of the certain provisions of the Declaration as norms of the international customary law are timely and fully justified. The article analyzes national judicial practice of sovereign states and the International Court of Justice in order to identify the possibility of such recognition. MATERIALS AND METHODS. The article is based on a considerable amount of materials, including the Universal Declaration of Human Rights, working materials of the UN Commission on Human Rights, statements made during General Assembly meeting (documented as verbatim records) on adoption of the Declaration, decisions and advisory opinions of the International Court of Justice, as well as the doctrinal positions of different authors. The methodological basis of the research comprises the general scientific methods (the dialectical, historical, statistical methods, methods of generalization and system analysis) and special methods of cognition (comparative legal and formal legal methods, methods of interpretation of legal norms). RESEARCH RESULTS. In the basis of the study of the international legal acts and international judicial practice, national legislation and judicial practice of concrete states, as well as doctrinal positions of scientists, the author makes conclusions on the legal status of the Universal Declaration of Human Rights. DISCUSSION AND CONCLUSIONS. In the article the author gives a historical reference on the diplomatic contestation in the period of the adoption of the Declaration which subsequently affected the final text of the document. Taking into account the moral significance, as well as weighty contribution of the Declaration to the adoption of international and regional human rights treaties, national legislation and judicial practice, the author comes to the conclusion that the certain provisions of the Declaration should be recognized as norms of the international customary law. The author also concludes that in modern conditions, when a number of states are still not a party to the main international human rights treaties, the provisions of the Universal Declaration of Human Rights should act for them as binding norms of international customary law that are formed as a result of international practice of states and are gradually recognized by them as a legal norm. This conclusion is also formed on the basis of the practice of the International Court of Justice, the decisions and advisory opinions of which are analyzed by the author in this article.

Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum

Two different theories attempt to reconcile problems of application of international human rights law in time of armed conflict, to the extent that there is a potential conflict with norms set out in international humanitarian law. One, posited by the International Court of Justice, presents international humanitarian law as the lex specialis, a kind of prism through which the concept of “arbitrary deprivation of life” (Article 6(1) International Covenant on Civil and Political Rights) is to be understood in time of armed conflict. In effect, international humanitarian law supplants international human rights law during armed conflict. The other theory, advanced by the Human Rights Committee, views the two bodies of law as additive in effect. Both regimes apply, and the individual benefits from the more favorable one (“belt and suspenders” approach). Both theories profess the fundamental compatibility of the two different legal systems, yet they are predicated upon a method for resolving conflicts between them. Both theories encounter serious problems in their application. The author submits that the difficulty with these attempts to reconcile human rights law and humanitarian law lies with the failure to grasp an underlying distinction: international humanitarian law is built upon neutrality or indifference as to the legality of the war itself. Human rights law, on the other hand, law views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum. It too must accept the idea of the acceptability of “collateral” killing of civilians in war, even if the war itself is illegal. The author argues that it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardee.

The contribution of the International Court of Justice (ICJ) to the interpretation and development of international human rights and humanitarian law rules and principles is a topic of growing interest and importance. Claims of breaches of norms of both these branches of law have been raised in a considerable number of cases brought before the ICJ in the last two decades. By clarifying the complementary application of international human rights and humanitarian law and by awarding natural and legal persons a right to reparations vis-à-vis the State the ICJ has rendered a valuable contribution to a better protection of individual rights under the general framework of international law. This contribution of the Court is illustrated by focusing mainly on the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the Armed Activities on the Territory of the Congo case. That not only for reasons of space constraints, but also because of the considerable leaps forward made through these cases.

As is well known, different countries may have a different attitude toward the formal rank of international human rights law in domestic legal order. In those countries that qualify the ratified international human rights law merely as statute, the formal rank of international human rights law is often used as an argument against the binding force of international human rights law on domestic constitutional law. Through a comparative analysis between Germany and Taiwan, though, this paper shows that, despite similar determinations on the formal rank of international (human rights) law, the German and the Taiwanese Constitutional Courts have developed quite different views on the normative significance of international human rights law to their domestic constitutional orders. The different constitutional practices in Germany and Taiwan thus not only reflect Taiwan’s unique international status, but also indicate that the formal rank of international human rights law does not have much to do with its normative binding force on domestic constitutional law. Those who use formal rank as an argument against the binding force of international human rights law on constitutional law presuppose the absolute dichotomy of international and domestic law and thereby overlook the potential compatibility between international human rights law and constitutional law. From a human rights perspective, I argue that international human rights law should not be regarded as an “external” law, but rather as a framework order which delegates domestic constitutional orders to concretize international human rights law according to their own needs or interests so as to fulfill their international task of human rights protection on national level. Viewed this way, the determination on the formal rank of international human rights law in domestic legal order matters only because it has to do with the determination of a certain constitutional order on the way in which it concretizes international human rights law.

Achieving Gender Parity on International Judicial and Monitoring Bodies: Analysis of International Human Rights Laws and Standards Relevant to the GQUAL Campaign