Postgraduate Colloquium on Frontiers of International Environmental Law

The PluriCourts Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order in collaboration with the Faculty of Law welcome 20 young scholars working in the area of International Law and Environment to present and discuss their work in a subject-specific forum.

The 2017 theme

Since the release of the Brundtland Report in 1987, international environmental law has gone through a rapid evolution. Negotiations over global warming and the ongoing negotiations towards the adoption of a convention to protect marine biodiversity show how often states are engaged in international negotiations with the aim to cooperatively prevent environmental degradation.

In spite of an increased number of multilateral environmental agreements, States are still reluctant to establish an International Environmental Court. This significantly impacts the protection of the environment. In case of transnational environmental damages or in case of non-compliance with international obligations, there aren’t any specialized environmental courts which would assess States’ responsibilities for environmental damage. In order to cover this lack of remedies, well-established international courts such as the International Court Justice (the Whaling case) or the International Criminal Court (Ecuador v. Chevron) have been asked to rule in cases involving environmental damages. Recent cases have been contributed to advance the protection of environment at an international level. See for instance the ITLOS Advisory Opinion Activities in the Area where the Tribunal recognizes the States’ obligation of due diligence in case of non-compliance of international environmental agreement.

It is therefore a good moment to evaluate the developments achieved by international courts in the context of environmental protection.

The colloquium seeks to address the following questions: What advances have been made in environmental protection in international courts and quasi-judicial bodies? Are new IEL principles emerging? What is the relation between the traditional corpus of IEL principles and new emerging States‘ obligations of due diligence and duty of prevention in environmental protection? Have the principles of inter and intra generational equity gained the status of legally binding principles? How do the Courts interpret the principles of equitable access to natural resources and how do they balance this with the right to Development?

Applicants

The colloquium welcomes research from postgraduate students (Ph.D and Post-Doc) at all stages of their postgraduate work and LLM students working in the area of International Law and Environment.

Prizes

Prizes will be awarded to the best oral and poster presentations during the drink reception at the end of the day.

Marks will be awarded for the following:

  • Introduction
  • Aims/Hypothesis
  • Appropriateness of methodology
  • Conclusions
  • Legibility of poster
  • Audibility of talk
  • Clarity of expression
  • Ability to answer questions, engage in scientific discussion
  • The impact of the work on future studies and the field

Submission and deadline

Those interested in presenting in any area of International Law and Environment are invited to submit an abstract, indicating whether it is intended for oral or poster presentation, of no more than 200 words by Sunday 4 June 2017. The authors of abstracts selected for presentation will not be expected to submit completed papers but they may do so if they wish.

Financial aid

The colloquium is made possible by generous funding from Lovsamlingsfondet and the PluriCourts Centre of Excellence. During the day of colloquium lunch and dinner will be served. Presenters in need of financial support are invited to make contact with the organisers to discuss coverage of travel expenses.

Time and place: First Postgraduate Colloquium on Frontiers of International Environmental Law Sep. 21, 2017 9:00 AM5:00 PM

The Importance of Reading between the Lines: Strasbourg’s Case for 24

In February this year, Slovenia legalized same-sex marriage. From a European standpoint, this may not seem particularly ground-breaking considering that the Netherlands legalized same-sex marriage in 2001. However, marriage equality has been an uphill battle. Despite the recent surge of legalization of same-sex marriage in countries like the USA and New Zealand, it is still far from global acceptance. This is apparent in the lack of protection afforded to same-sex marriage in the European Court of Human Rights (the Court) when interpreting the European Convention on Human Rights (ECHR).

I argue that a minimum of 24 member states – a 50% majority – is needed to overcome the Court’s narrow interpretation of the right to marry (article 12, ECHR). Consequently, applicants and human rights activists should focus on domestic legislation first, rather than wasting time and money litigating at the Court. Without the 24 states in alignment – as a bare minimum – there will be no progress on same-sex marriage by the Court.

The question of same-sex marriage was first decided by the Court in the seminal case of Schalk and Kopf v Austria in 2010. The Court found that article 12 does not necessarily exclude same-sex couples. However, it does not enable the Court to force states to legislate in favour of same-sex marriage. Importantly, the Court also held that according to article 8, the right to respect for private and family life, same-sex couples should enjoy the same recognition as heterosexual couples. The Court continued this argument by saying it would be ‘artificial’ to look at same-sex relationships from any other starting point than as equal to a heterosexual couple.

Not surprisingly, the decision in Schalk and Kopf has faced substantial criticism, specifically with regards to the Court finding a same-sex relationship as equal to a heterosexual relationship while simultaneously allowing states to decide that same-sex couples cannot marry. The Court completely mishandled the prohibition on discrimination (article 14 ECHR). Notably, there was only a slim majority on this point (4-3), with the dissenting opinion of Judges Rozakis, Spielmann and Jebens stating: ‘the Court should have found a violation…because the respondent Government did not advance any argument to justify the difference of treatment’.

Based on this minority opinion, scholars and activists alike have tried to circumvent the ruling in Schalk and Kopf through three arguments:

  1. Under articles 12 and 14, the refusal to allow same-sex marriage is discriminatory.
  2. The ‘right to family life’ in Article 8 could be expanded to include the right to marry, which would include same-sex couples, who fall within the scope of article 8.
  3. Under articles 8 and 14, it is discriminatory to recognise same-sex couples but not allow them to marry.

Unfortunately, these arguments do not address two important points confirmed by the Court in both Hämäläinen v Finland (2014) and Oliari and Others v Italy (2015):

  1. The right to marry can only be found under article 12 (lex specialis), thus invalidating arguments 2 and 3 above. There has been a broadening of article 8 to include same-sex unions – but the Court has consistently held that this is not marriage and thus not covered under article 12. This was clearly illustrated when the Court confirmed Schalk and Kopf in Chapin et Charpentier v France (2016). There was no further debate or reasoning.
  2. Marriage is not the same as any other relationship as it has ‘social, personal and legal consequences’ (Schalk and Kopf) requiring a positive obligation to be enforced by the Court. This principle cannot be superseded by article 14 (argument 1) because, as the Court confirmed in Oliari, ‘it must not rush to substitute its own judgment in place of that of the national authorities.’ A wide margin of appreciation is thus afforded to the states.

However, all is not lost. This strict interpretation of article 12 has a weak point: the dynamic approach of the Court interpreting the ECHR in light of Europe’s present day. The Court understands that ‘European’ opinion is shifting in favour of same-sex marriage. Scholars have noticed this ‘trend’ or ‘emerging consensus’ among European countries to legislate in favour of same-sex marriage. Same-sex marriage has been legalised in eight more states since Schalk and Kopf was decided. However, this does not give the Court – in its opinion – the authority to interpret the right to marry liberally.

The Court has made it clear that a European consensus is a necessary precursor to its decision. What a consensus looks like is undetermined, but with only 14 out of 47 states legalising same-sex marriage, the consensus currently does not favour an expansion of same-sex marriage.

My argument for a minimum of 24 states stems from the decisions of Schalk and Kopf, Hämäläinen and Oliari. In the first, the Court looked to the majority as a ‘decisive factor’. In the second, it rejected looking at the trend (as had been used in other LGBT cases such as Vallianatos v Greece (2013)) and focused on the term consensus throughout its decision. In the third, a slim majority – 24 out of 47 – helped tip the scale in favour of the applicant (although an easier threshold as it concerned article 8, it is still indicative of what a consensus means for the Court).  There were, to be sure, other arguments that helped sway the Court in Oliari to find a violation of article 8.  However, the Court has not accepted such arguments when examining article 12, to which only the European consensus has been consistently applied.

The Court can still argue that 24 states would not be enough to impose an obligation to legislate for same-sex marriage. However, without 24 states, it is hard to imagine the Court finding in favour of same-sex marriage.

The focus of future litigation in this area must start with the states rather than skipping straight to the Court. The only legal argument that will convince the Court is one that rests on a more unified Europe. Thus, Slovenia’s historical decision to legislate in favour of same-sex marriage can be seen as a step forward for the Court and a more progressive reading of article 12.

 

Further arguments on this post can be found by reading my Master thesis. This post has also has been cross-posted on the PluriCourts – Centre of Excellence on the Study of the Legitimate Roles of the Judiciary in the Global Order – Blog.

 

 

 

On the Job! Director of the Indiana University Mexico Gateway

On the Job! compiles interesting vacancy notices, as follows:

► Applications are welcome from for the position of Director of the Indiana University Mexico Gateway.  The holder of this position will principally work from the IU Mexico Gateway office located on the campus of National Autonomous University of Mexico (UNAM). He/she will work in close cooperation with an Academic Director and report to the Director of IU’s Global Gateway Network, both of whom are based in Bloomington, Indiana within the office of IU’s Vice President for International Affairs. If interested in the position, please e-mail your CV and cover letter to Alexander (Ally) Batten, Director of International Gateways, Office of the Vice President for International Affairs at abatten@iu.edu. Deadline is 26 May 2017.

 

Applications now welcome for 2017 Global Governance Summer School, presented by Georgia Law & Leuven Centre for Global Governance Studies

We at the Dean Rusk International Law Center at the University of Georgia School of Law, are proud to partner with the Leuven Centre for Global Governance Studies at the University of Leuven, to present our 2017 Global Governance Summer School. The Summer School’s core events will take place June 26-30 in Belgium.

Georgia Law students will join at Leuven a target audience of: advanced students in international law, international relations, international political economy, and international and European studies; and practitioners and policy experts who wish to update their knowledge on developments in global governance and international law. We partner institutions welcome applications from such individuals; register here.

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Peace Palace at The Hague in the Netherlands, home of the International Court of Justice

Our Georgia Law students will begin their European journey with a 3-day professional development trip to The Hague, site of many international legal institutions. Plans include attendance at the trial  of Prosecutor v. Ongwen at the International Criminal Court, touring the Peace Palace and a briefing at the International Court of Justice, and an audience with a judge and legal advisers at the Iran-U.S. Claims Tribunal.

Our students then will travel to the centuries-old University of Leuven, one of Europe’s premier research institutions, to take part, alongside other participants, in the Belgium-based Global Governance Summer School. The program is as follows:

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University Library, University of Leuven, Belgium

► June 26-28, participants will attend classroom seminars on issues of international law and global governance, including global economic and trade governance and global human rights, rule of law, and security governance. Instructors include the Summer School’s co-directors, Georgia Law Associate Dean Diane Marie Amann and Leuven Professor Jan Wouters, along with others from both universities: from Georgia Law, Professor Harlan Cohen and Kathleen A. Doty, our Center’s Director for Global Practice Preparation; from Leuven, Dean Bart Kerremans, Professors Horst Fischer, Dominik SteigerGeert Van Calster, Drs. Matthieu Burnay and Nicolas Hachez, and Senior Researcher Philip De Man.

► Next, on June 29, Summer School participants will participate in International Law and Global Governance in a Turbulent World, an expert conference featuring three panels composed of scholars and practitioners from around the world:

  • Global Governance of Human Rights. How to enforce universal values in contested world?
  • Global Governance of Democracy and Rule of Law in international perspective.
  • Global Economic and Trade Governance in Protectionist Times. Will we see the emergence of trade wars in the coming years?
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Headquarters of the North Atlantic Treaty Organization, Brussels, Belgium

► The Summer School will conclude on June 30 with a professional development trip in Brussels, where students will visit the headquarters of the North Atlantic Treaty Organization and the office of the global law firm Sidley Austin LLP.

Further information here; registration for the Belgium-based components of the Summer School here. Hope to see you there.

Write On! MJIL call for papers & Lancaster University Symposium

This installment of Write On!, our periodic compilation of calls for papers, includes calls for papers in the Melbourne Journal of International Law and for the symposium at Lancaster University, as follows:

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►The Editors of the Melbourne Journal of International Law (‘MJIL’), are now inviting submissions for volume 18(2). The deadline for submissions is 1 July 2017MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil@unimelb.edu.au. For more information please visit their site.

►Lancaster University is hosting a symposium entitled ‘Economic, Social and Cultural Rights and Sustaining Peace: Developing New Insights into Peacebuilding’ on 5 July 2017 at Lancaster University, UK. The symposium is the second event of a collaborative project between the Quaker UN Office (QUNO), Friedrich Ebert Stiftung (FES) and Dr.Amanda Cahill-Ripley, which aims to enhance knowledge and understanding of the role of economic, social and cultural rights (ECSRs) in sustaining peace. Please submit a 200-500 word abstract to: escr@lancaster.ac.uk by Friday 26 May 2017.

Work On! Tilburg University Summer School

Work On! is an occasional item about workshops, roundtables, and other fora that do not necessarily include publication:

logo Tilburg University Summer School is running a two-week program examining the opportunities and challenges in addressing conflict-related sexual violence and human trafficking  from 17 July – 28 July 2017, in Tilburg at Tilburg University (the Netherlands). Deadline to register is 31 May 2017. Please find more details here.

 

Policy Brief on Women in Da’esh- From Recruitment to Sentencing

Ester Strømmen has recently published a PRIO policy brief on Women in Da’esh

Da’esh has stunned the world with gross human rights abuses, gendered violence, and practices of sexual slavery, and yet, the organization has attracted a large amount of female recruits. Women who have joined Da’esh have been met with a storm of disbelief and gendered commentary, and have even been designated their own term – ‘jihadi brides’. This policy brief by Ester Strommen from PluriCourts, the University of Oslo, explores agency and women in Da’esh: why women join, their roles, and how women are treated if they return to the West. The brief illuminates how gendered understandings of Western female foreign fighters are affecting judicial processes and potentially creating gaps in our security structure. It examines how gendered narratives in sentencing may be in conflict with UNSCRes 2178 and CEDAW.

 

Read the full policy brief here.

Ester Strømmen is research assistant at PluriCourts at the Department of Public and International Law, University of Oslo, Norway.  She works within the pillar on International Criminal Law. She holds a Masters of Law (LLM) in Public International Law from the University of Oslo, and an M.A. (Honours) from the University of St. Andrews in International Relations. Her research areas include international criminal law, counter terrorism and human rights, foreign fighters and gender and terrorism.