The question of human rights and energy has been traditionally framed as an analysis of limitations on energy transactions arising from substantive and procedural human rights. Whereas the negative... Show moreThe question of human rights and energy has been traditionally framed as an analysis of limitations on energy transactions arising from substantive and procedural human rights. Whereas the negative externality framing of human rights sets safeguards against the adverse effects of energy transactions and thereby restrains how such transactions are conducted, it overlooks a more fundamental dimension, the conferral of entitlements. Indeed, human rights define entitlements over energy resources, setting competing claims that limit not only how energy transactions are conducted but also the very power to conduct them in the first place. The entitlement dimension of human rights also unveils a wider question, namely the competing claims of a variety of collective subjects against the entitlement of the territorial or coastal States. In other words, such reframing opposes two logics of international law, each based on a different conception of the source from which entitlements flow. This article investigates the externality-avoidance and entitlement function of human rights in the context of international energy transactions. It reviews the most relevant judicial and quasi-judicial practice at the international level to illustrate the implications of framing the function of human rights from one or the other perspective. Show less
The ordinary meaning of the term ‘prevention’ is to prevent harm from occurring. But what ‘harm’? For over 170 years, the system now embodied in the World Health Organization’s (WHO) International... Show moreThe ordinary meaning of the term ‘prevention’ is to prevent harm from occurring. But what ‘harm’? For over 170 years, the system now embodied in the World Health Organization’s (WHO) International Health Regulations (IHRs) has answered this question by focusing on the prevention of disease ‘spread’ across countries, rather than on the ‘spillover’ of pathogens from animals to humans, which constitute the main source of pandemic risk today. This bias towards the containment of disease has deep roots. In the historical context from the IHRs emerged, focusing on pathogen spillover was beyond the possibilities of the science of the time; it was also pointless to the extent that the effort focused on pathogens which were already prevalent in humans, causing diseases such as cholera or plague. Transposed to the present day, this containment bias has important consequences for global health governance. Most importantly among these is that the global health security architecture still lacks a specific system to prevent spillovers of pathogens at the origin of outbreaks and subsequent spread of diseases such as COVID-19, SARS, MERS or Ebola. This article investigates the roots of this focus on containment. Relying on the proceedings of the International Sanitary Conferences that preceded the IHRs, as well as on an untapped documentary archive relating to the revision of the IHRs between 1995-2005, the article explains the reasons underpinning this enduring bias and its implications for global health governance. Show less
Le Moli, G.; Viñuales, J.E.; Burci, G.L.; Strobeyko, A.; Moon, S. 2022
This article explores the quest for sovereign equality by China and Japan as it unfolded in a specific historical moment, the third quarter of the nineteenth century. It does so by focusing on the... Show moreThis article explores the quest for sovereign equality by China and Japan as it unfolded in a specific historical moment, the third quarter of the nineteenth century. It does so by focusing on the debate around the ‘coolie trade’, i.e., the traffic of Chinese indentured labourers, which offered an opportunity for non-Western countries such as China and Japan to position themselves with respect to Western conceptions of ‘modernity’ or ‘civilization’ and thereby advance their quest for ‘parity with all nations’. Through a study of the Maria Luz case, decided in the early 1870s by Czar Alexander II and drafted by de Martens, the article sheds light on the different approaches of Japan and China with respect to international law at this critical historical juncture. Specifically, it shows that, although the coolie trade mostly affected China, it was Japan who first managed to reap a parity dividend by firmly condemning the practice, whereas China’s action was steered by the circumstances. Eventually, however, China’s growing interest in Chinese populations abroad paved the way for the establishment of its first permanent diplomatic representations overseas. For both countries, the events encapsulated by the Maria Luz case unveil an important, yet overlooked, moment in their quest for parity with all nations and, more generally, in their engagement with international law. Show less
This chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force... Show moreThis chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force remain largely unimplemented. Secondly, treaties only bind those states parties to them, and that introduces sometimes important variations in the scope of environmental agreements. Thirdly, there is at present no treaty formulating binding overarching principles interweaving sectorial environmental agreements. As a result, it is often necessary to revert to customary norms when difficulties of interpretation or implementation arise. Fourthly, custom is important to mediate between a range of environmental and non-environmental interests governed by different treaties. Finally, custom plays an important role in disputes concerning a disputed area or where there is no applicable treaty. The chapter then analyses the process of custom formation with reference to environmental norms in order to show both the ‘banality’ and the peculiarities of this process. It also looks at the content of customary international environmental law as recognized in the case law. Show less
This article analyses the normative powers conferred on and exercised by 69 Investigative Mechanisms, including UN Commissions of Inquiry, Fact-Finding Missions and Independent Investigative... Show moreThis article analyses the normative powers conferred on and exercised by 69 Investigative Mechanisms, including UN Commissions of Inquiry, Fact-Finding Missions and Independent Investigative Mechanisms established between 1963 and 2020. Relying on a dataset collected by the author including all their mandates (78) and reports (121), the article introduces an analytical framework and uses it to (i) identify the specific normative powers conferred on Investigative Mechanisms, (ii) the evolution and main step changes in these powers between 1963 and 2020, and (iii) their specific expression in actual practice in matters such as the use of terminology (violations/abuses of human rights by non-State actors), the determination of the standard of proof, the characterization of primary norms, the development of integrated accountability strategies, and the internalization of functions usually entrusted to prosecutorial mechanisms. Show less
This article examines the role of ad hoc investment arbitration tribunals in arbitrating highly sensitive matters in transitional justice contexts, focusing on disputes arising from black economic... Show moreThis article examines the role of ad hoc investment arbitration tribunals in arbitrating highly sensitive matters in transitional justice contexts, focusing on disputes arising from black economic empowerment (BEE) policies in countries formerly under racially discriminatory regimes. After an overview of the investment protection system, the article introduces the historical context of BEE policies. It subsequently analyses three main disputes, one against South Africa and two against Zimbabwe, where white concession holders and landowners relied on Bilateral Investment Treaties to claim compensation for the consequences of BEE mining and land redistribution policies. These disputes provide a testing ground to shed light on the role of investment arbitration in the context of transitional justice. The article concludes that such a role essentially amounts to an intrusion in the perilous ‘balancing act’ of managing a transitional justice process. Show less
In its August 2019 decision in Portillo Cáceres v Paraguay, the Human Rights Committee recognised, for the first time, the existence of a connection between environmental protection and the right... Show moreIn its August 2019 decision in Portillo Cáceres v Paraguay, the Human Rights Committee recognised, for the first time, the existence of a connection between environmental protection and the right to life with dignity. This is not only a landmark decision for the Committee but also represents the consolidation of a body of case law and practice from the three regional human rights courts and other UN human rights bodies which has developed over the last quarter of a century. It also shows the potential of two important and widely debated paragraphs in the newly adopted General Comment No. 36 on the Right to Life, which describe environmental degradation as both an enabler of threats and a direct threat to the right to life. Such potential has been confirmed in another landmark decision of the HRC—Teitiota v New Zealand, relating to climate change as threat to life. This article draws on Portillo Cáceres v Paraguay and Teitiota v New Zealand to analyse this wider field of practice in order to clarify the connection between the right to life and environmental protection, as recognised by the Committee, and considers its potential impact on future litigation. Show less
In human rights practice, references to ‘dignity’ are as pervasive as they are difficult to pin down. ‘Dignity’ is used widely and often contradictorily. It underlies the privileged legal treatment... Show moreIn human rights practice, references to ‘dignity’ are as pervasive as they are difficult to pin down. ‘Dignity’ is used widely and often contradictorily. It underlies the privileged legal treatment afforded to states as a result of their sovereignty, but also the claims to strip states and state officials of the manifestations of such sovereignty, such as immunities. It also grounds the overriding character of human rights and social development, while at the same time adding legitimacy to the fight against ‘anthropocentrism’ and for the protection of nature for its own sake. From ‘sovereignty’, to ‘human dignity’, to ‘eco-centrism’, the concept of dignity underlies the normative claims of three competing circles. In this review essay, I rely on the distinction between these three circles of dignity to organize the survey and discussion of an extensive body of work that has helped to clarify the contours of the concept of ‘dignity’. The essay aims to empower practitioners not only to avoid the abuse of this concept but also the dilution that may result from casual and unconsidered reference to it. More fundamentally, it explores two conceptual battlefronts opened by the concept of human dignity. These battlefronts are interdependent because the very assertion of human dignity to protect the individual against the powers of the state may also lay the foundations for an over-exploitation of nature. Show less
