Tag: Research

US-Israeli attack against Iran – Jurisdictional hurdles to prosecute the crime of aggression    

Author Faculty of Business and Law | Posted on

By Tanvir Hashem Munim

This blog post is part of a series of posts published by the Research In Public International Law Group. 

Introduction 

The recent US-Israeli attack against the sovereign nation of Iran – which included the deadly bombing of a primary school, killing more than 150 children and wounding over 100, as well as the killing of the Supreme Leader, Ayatollah Ali Khamenei, along with several family members – presents a textbook example for the war crimes and the crime of aggression. This blog post focuses primarily on the jurisdictional hurdles involved in prosecuting the crime of aggression. It demonstrates how the proposed amendments to the jurisdictional provisions for the crime of aggression in the Rome Statute, and a Ukraine-style special tribunal, could provide some potential pathways for navigating these hurdles. It first briefly outlines how the attack constitutes both a war crime and a crime of aggression, followed by an analysis of the jurisdictional obstacles for the crime of aggression and their navigation, before placing the crime of aggression in a historical context to make a case for hope.  

The attack constituting crime of aggression and war crime 

The attack constitutes a manifest violation of Article 2(4) of the UN Charter, which prohibits the use of force. Furthermore, there appears to be no reasonable claim to the exercise of self-defence under Article 51 of the Charter (Quénivet 2026). Consequently, the invasion of the sovereign state of Iran and the bombardment of its territory qualify as acts of aggression under Article 8 bis (1) and (2) of the Rome Statute of the International Criminal Court (ICC), rendering those in authority responsible for the crime of aggression. Specifically, the Head of State and Head of Government of the US and Israel – President Donald Trump and Benjamin Netanyahu – as individuals in positions to effectively exercise control over or direct military action, bear apparent responsibility under Article 8 bis (1). 

Moreover, during this international armed conflict under Common Article 2 of the Geneva Conventions, the bombing of a primary school – a property being a civilian object protected under the Article 52 of Additional Protocol I of the Geneva Conventions – may constitute grave breaches of the Geneva Conventions of 12 August 1949, as per Article 8(2)(a) of the Rome Statute. Directing attacks at undefended schools and the killing of the civilian population and senior leadership may also constitute violations of the laws and customs applicable in an international armed conflict under Article 8(2)(b). These acts may amount to war crimes, particularly as they were undertaken as part of a coordinated US-Israeli plan or policy to topple the Iranian regime.  

Aerial view from airplane showing a target

Pathways to accountability: navigating jurisdictional challenges for crime of aggression 

The primary challenge is not whether these acts constitute specific crimes – as the law would suggest they do – but rather the difficulty of ensuring accountability within the framework of international criminal law. Under Article 15 bis and 15 ter of the Rome Statute, the ICC can only exercise jurisdiction over the crime of aggression committed by the national of a state if the state is a party to the Rome Statute, if the crime of aggression occurs on the territory of a state party or if the security council refers the crime of aggression to the prosecutor of the ICC. 

Further, under Articles 15, 15 bis, and 16 of the Rome Statute, no investigation into the crime of aggression can proceed unless the UN Security Council makes a determination that an act of aggression has been committed by the state concerned. Alternatively, an investigation may proceed if the Pre-Trial Chamber of the ICC authorises it, provided the Security Council has not deferred the matter. Since the U.S., Israel, and Iran are non-parties, and the U.S. holds a permanent seat (and veto) on the Security Council (Article 27(3) UN Charter), a reference to the prosecution or non-deferral of investigation is unlikely, leaving the crime of aggression legally out of reach at the ICC.  

However, the ongoing amendment review initiated by the Assembly of States Parties (ASP) of the ICC in July 2025 provides a potential solution to this jurisdictional hurdle, as the ASP is considering an amendment – proposed by Germany, Costa Rica, Slovenia, and several other states – to modify the conditions under which the Court may exercise jurisdiction over crimes of aggression. If implemented, the amendment would mean that if the state on whose territory the crime occurred, or the state whose national is accused of committing the crime, ratifies or accepts the amendment (provided it is already a State Party), then the ICC can exercise jurisdiction. Furthermore, if a state chooses to remain a non-State Party or not to ratify the amendment, the Court could still exercise jurisdiction if that state lodges an Article 12(3) declaration with the ICC Registrar accepting the Court’s jurisdiction over the crime of aggression. 

This amendment would be highly relevant in holding Heads of State and other officials responsible for the US–Israeli attack on Iran. It would mean that Iran, even if it chooses to remain a non-State Party to the Rome Statute, could lodge an Article 12(3) declaration giving the ICC jurisdiction over crimes committed on its territory. Article 12(3) declarations can apply retrospectively, as seen in the case of Ukraine, which filed a declaration in April 2014 accepting jurisdiction for crimes committed between 21 November 2013 and 22 February 2014. 

However, whether the principle of non-retroactivity under Article 24 would preclude the retrospective effect of the amended provision – thereby preventing Iran from reaching back to the recent attacks by the US and Israel – is debatable. One could argue that while the procedural provisions would be amended, the substantive provisions (Articles 8 bis, 15 bis, and 15 ter of the Rome Statute) criminalising acts of aggression have been effective since July 2018, making the nullum crimen sine lege (no punishment without law) argument less persuasive. Nevertheless, one must wait and see, as the next ASP session will be convened in 2029 to consider the proposed amendments.  

Meanwhile, a Council of Europe–style Special Tribunal for the crime of aggression, similar to the one established for Ukraine, could be considered. The necessity of such a tribunal stems from the fact that, within the current ICC legal framework, jurisdiction over the crime of aggression is limited to States Parties to the Rome Statute – a hurdle that currently prevents the ICC from exercising jurisdiction over the US-Israeli attack on Iran. In the absence of an exact parallel to the Council of Europe in Asia, the organisations that most closely resemble it – specifically regarding the formation of a tribunal by negotiating a statute with Iran and using the Ukraine model as a blueprint – could be the Organization of Islamic Cooperation (OIC), which currently represents 57 states including Iran, or the Shanghai Cooperation Organisation (SCO). The SCO is the world’s largest regional organisation in terms of geographic area and population; it focuses on Eurasia and includes Russia, China, India, Iran and Pakistan, among others, as member states. Unlike the ICC, the Ukraine model would support trials in absentia. However, a downside of such a tribunal is that it may not be able to conduct the trial of a sitting Head of State, Head of Government, or other person in an official capacity unless they leave their position or their immunity is waived (Cosneanu 2025). 

Accountability for international crimes: a challenging but hopeful case 

Ultimately, bringing perpetrators of international crimes to justice will be a long and challenging battle, though at the ICC these crimes are not subject to limitation period per Article 29 of the Rome Statute, given that international criminal justice is not without political influence. One can understand the challenges the ICC may face in this regard, when they consider the fact that the US imposed sanctions on the ICC judges and prosecutors once the ICC issued arrest warrants for Benjamin Netanyahu and Yoav Gallant for the alleged war crimes and crimes against humanity in the situation in Palestine.  

However, setbacks in prosecuting Heads of State and other senior government officials are not novel. The victors’ attempt to prosecute the Grand Vizier of the Ottoman Empire for the Armenian massacre never saw the daylight, as the Treaty of Sèvres negotiated in Paris was never ratified by any Turkish regime. The attempt to prosecute the German Emperor, Kaiser Wilhelm II, also could not materialise, as the ‘special tribunal’ sanctioned by the Treaty of Versailles was never actually established and as the Netherlands refused to extradite him (Schabas 2012). An even-handed prosecution for the atrocities committed in the Second World War – by way of bringing to justice those responsible from the Allied forces, such as the Russian leadership for the Katyn Massacre of Polish citizens or the US leadership for the Hiroshima and Nagasaki bombings or the UK-US leadership for the Dresden bombings – never materialised (Labuda 2024).. Even after all these setbacks, since we have precedents of successful prosecutions of Heads of State and senior officials, such as Japanese Prime Minister Hideki Tojo at the International Military Tribunal for the Far East (IMTFE), or Yugoslav President Slobodan Milošević and Rwandan Prime Minister (Interim) Jean Kambanda at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) or Liberian President Charles Taylor at the Special Court for Sierra Leone (SCSL) – there is always hope for justice to prevail in the long run.  

Conclusion 

Finally, to echo Sir Thomas More, the celebrated English lawyer and Lord Chancellor, a question must be asked of us all: if the Devil were to turn around on us – if we remain silent now and passively accept this flagrant breach of international norms and a culture of impunity – where would we hide when our turn comes?  

The United States’ flawed justifications for the intervention in Iran: Anticipatory self‑defence and ad hoc collective self‑defence  

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By Noëlle Quénivet 

This blog post is part of a series of posts published by the Research In Public International Law Group. 

Introduction 

Recent US and Israeli military operations against Iran have prompted intense debates about the legality of such force under contemporary international law. US Secretary of State Marco Rubio claimed the United States acted to support Israel as the US President “knew that there was going to be an Israeli action. We knew that that would precipitate an attack against American forces”. Yet this combination of justifications does not support the actions taken. 

The US justification rests on speculative assessments about what Iran might have done, rather than demonstrable evidence of an impending attack. This conclusion is echoed forcefully in a plethora of expert commentaries on various international law blogs (see e.g. Milanovic 2026, Adil Ahmad Haque 2026). Whilst Lieblich 2026 has provided an excellent examination of the double pre-emption and imminence discussion, one element that has, however, not been elaborated upon is that the attack by the US could be considered an ad hoc form of collective self-defence. This post argues that, absent a lawful intervention by Israel, the US would not be able to claim it is acting in collective self-defence. 

This post starts by explaining the prohibition of the use of force and its exceptions, notably Article 51 of the United Nations Charter and the customary rule of anticipatory self-defence. It then warns against an expansive interpretation that includes pre-emptive self-defence before providing an analysis of a flawed potential collective self-defence claim.  

Article 51 and the threshold requirement of an armed attack 

The prohibition of the use of force is a cornerstone of the United Nations Charter (ICJ DRC v Uganda 2005, para 148), anchored in its Article 2(4). Force can only be used in two specific circumstances: when the Security Council authorises the use of force (Chapter VII), and in the exercise of the inherent right of individual or collective self-defence if an armed attack occurs (Article 51). 

Some quarters would argue that, given that Israel had already been attacked by Iran (some time ago), the right of self-defence did not extinguish simply because time had passed (see Lovitky 2025 on Israel’s attack against Iran in June 2025 following Iran’s attacks in October 2024). The law is clear: a State must prove that resort to force is necessary to repel the attack. First, it is difficult to see how the current attack fends off an attack that is over a year old. Second, necessity is also measured with due regard to whether nonforcible means could be used successfully (see Adil Ahmad Haque 2026; Schmitt, Bridgeman and Goodman 2026). Israel did not even attempt negotiating with Iran; rather, it was the US that was in discussion with Iran and, according to Oman’s Foreign Minister, “peace [was] within […] reach”. Yet, the US ended such negotiations.  A claim of necessity cannot thus be made. 

Anticipatory self-defence: A narrow and disputed doctrine 

Under customary international law, anticipatory self-defence is recognised as a lawful use of force. This narrow exception, stemming from the 1837 Caroline incident, allows force when the State can show “a necessity of self-defence, instant, overwhelming, and leaving no choice of means and no moment for deliberation”. The rule of thumb is that the State is simply using force “before it is too late to do so”, i.e., to enable it to mount an effective defence (see O’Meara 2022). As Schmitt 2025 puts it, this is a test of “last window of opportunity”. However, nothing suggests that Iran was on the brink of launching an attack against Israel or the US.  

Modern interpretations of this rule have focused on the imminence of the attack, each State (e.g. the US, the UK, and Australia) adopting its own standard. The lack of a common understanding both among States and scholars reflects the controversial nature of the use of force in anticipatory self-defence. Among the indicators used to determine the lawfulness of such action (see O’Meara 2022) are the probability or likelihood of the attack, the nature of the threat, the immediacy of the threat, whether the use of force is the only reasonable choice in the given circumstances, whether the response is proportionate, etc. That said, an anticipatory self-defence claim rests on actual imminent threats, not hypothetical scenarios. In practice, much of this links back to the availability of accurate intelligence information (see Bachmann and Keinan 2025). Nothing in the few days before the Israel/US attacks suggests that Iran was more likely to attack Israel than at any other point. In fact, Iran was at the time in negotiations with the US (see interview with Oman’s Foreign Minister).  

Rubio’s justification did not rely on evidence of Iranian mobilisation but on US predictions that Iran might retaliate for Israel’s own pre-planned actions. What is more, Rubio’s statement could be interpreted as inadvertently undermining the US claim by stating that the US knew that “there was going to be an Israeli action” (a claim later withdrawn). He did stress the Iranian military preparations as the catalyst for US fears. This is the opposite of imminence! This reinforces the claim that Israel lacked a basis to claim imminence. 

Pre-emptive self-defence: An even narrower and more controversial doctrine 

Since the Bush era, the concept of pre-emptive (sometimes also confusedly referred to as preventive) strikes has gained prominence, though it is highly controversial. Whilst the US seemingly acted under such a doctrine when it invaded Iraq in 2003, it argued that it did not accept such a theory (see discussion in Taft and Buchwald 2003); rather, in its view, the intervention was based on Iraq having violated a UN Security Council resolution (see Finucane 2025). The doctrine of preemptive self-defence was mainly developed in the context of the “war on terror” to enable the US to strike State and non-State actors in a “non-consenting state” (see Lederman 2016), i.e. a State unable or unwilling to put an end to that threat on its territory (see Schmitt 2025). 

There is, nonetheless, a wider reach of this doctrine, notably with the purpose of such strikes being to destroy a State’s threatening capabilities. This is more often called preventive self-defence (see Israel’s position as explained in Friedman 2026). In 1981, the US joined other States in the UN Security Council (Resolution 487 (1981)) in condemning Israel’s attack on Osirak, an Iraqi nuclear facility and rejecting similar justifications (see Finucane 2025). It pointed out the “absence of any evidence that Iraq had launched or was planning to launch an attack that could justify Israel’s use of force. … [T]he presence in a State of the military capacity to injure or even to destroy another State cannot itself be considered a sufficient basis for the defensive use of force.” (Sofaer, US Legal Adviser, as cited in Lederman 2016). Replace Iraq with Iran in the above statement, and the irony of such a statement in light of the current events is not lost on the reader. This historical consistency severely undercuts Washington’s current position. Rubio indeed stated that the US intervened “to eliminate the threat of Iran’s shortrange ballistic missiles and the threat caused by their Navy particularly to naval assets”. 

It is evident that such a (flawed) understanding of anticipatory self-defence differs significantly from the original interpretation of the Caroline incident formulation. For certain, the law evolves, but even the most contemporary interpretations of anticipatory self-defence do not authorise preventive strikes based merely on an adversary’s developing capabilities. As Schmitt 2025 emphasises, “States enjoy no right under international law […] to use force solely because another State is about to acquire a threatening capability”. 

Collective self-defence 

Under international law (both Article 51 UN Charter and customary international law (see ICJ Nicaragua 1986, para 194)), a State is allowed to seek support through collective self-defence, which denotes the situation whereby a State acts to defend an ally that has suffered an armed attack or is facing an imminent threat. Interestingly, the US support for Israel has not been couched in terms of collective self-defence. That being said, let’s entertain this claim here. For collective self-defence to be lawful, the self-defence must comply with the jus ad bellum rules (see Green 2024; Schmitt, Bridgeman and Goodman 2026).  This means that if Israel lacked a valid claim of self-defence, then the United States cannot invoke collective self-defence.  

First, it must be noted that the US did not refer to collective self-defence in this recent attack. This contrasts to the situation in June 2025, when the US had invoked it in its letter to the UN Security Council to justify its attack on Iran by first referring to Israel responding to Iranian attacks “in the exercise of its inherent right of self-defence” and adding that “[i]n close coordination with the Government of Israel, the United States has taken necessary and proportionate action […] to defend Israel and also to protect our own security, citizens, and interests, consistent with Article 51 of the Charter of the United Nations.” Even at the time, Finucane 2025 demonstrated that such a claim violated international law. As explained, Israel can certainly not claim to be acting in self-defence. This forecloses the possibility of a lawful “derivative” US collective self‑defence. 

Second, from a procedural perspective, the victim State must declare that it has suffered from an armed attack, and it must request military aid in response (ICJ Nicaragua 1986, paras 165, 195 and 199). Israel therefore needs to issue a declaration that it has been attacked and then an ad hoc request for the US to join them in self-defence. Green 2017, however, points out that, in practice, the declaration requirement finds no relevance. In contrast, the request for assistance is (see Green 2024). No request was made by Israel; rather, it seems that the US intervened out of fear that it would be attacked (Rubio). 

Third, and relatedly, the US rationale for its intervention appears to be also grounded in its own projection that Iran might retaliate against US assets following Israeli escalation (see Rubio). In other words, the putative attack was on the US and not Israel, which, following this logic, would make it impossible for the US to claim that it acted in collective self-defence to support Israel. 

Conclusion 

This interpretive drift regarding anticipatory self-defence has become particularly dangerous (see also Schmitt 2025). While governmental legal teams could be perceived to be bending doctrines to suit policy goals rather than grounding policy in legal constraints, it gives the impression that an increasing number of political leaders now see international law not only as a constraint but also as an utter nuisance. The US logic depends on a chain of hypothetical contingencies, reminiscent of the “Minority Report” scenario. International law categorically rejects such conjectural reasoning. In the end, the intervention reflects precisely what international law seeks to prevent: unilateral, pre-emptive uses of force dressed in the language of (collective) self-defence. 

How effective are Rights of Nature in further protecting whales?

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From the inter- and intra-generational equity perspective (current and future generations)

Auriane Boileau, LLM student 2025

Amid growing momentum for ocean conservation, the movement to recognise the Rights of Nature is expanding and whales are part of it. By recognising and respecting the Rights of Nature, one has the power to shift the direction humanity is taking the planet Earth, for both current and future generations.

Annually 300,000 whales are killed as bycatch1, with fishing gear ingestion a leading cause in the United Kingdom.2 While Japan, Norway and Iceland continue to hunt whales despite a global ban on commercial whaling. Legal experts, scientists, policy-makers and ocean advocates should rethink environmental governance, analyse international legal gaps and propose stronger compliance mechanisms.

By integrating the Rights of Nature, whale species ought to be recognised as sentient beings with legal standing. This approach means that a treaty reform to protect oceanic life as a core responsibility to future generations is required.

Are current international legal frameworks effective enough in protecting whales in the context of future generations’ rights?


The international legal framework for whale protection has undergone a remarkable transformation, shifting from sustaining commercial exploitation to prioritising conservation.3

The foundation era (1946–1970s) was established through the 1946 International Convention for the Regulation of Whaling (ICRW), which evolved from managing whale stocks4 to implementing a comprehensive ban on commercial whaling5 through the 1982 International Whaling Commission moratorium.6

The framework’s effectiveness is strengthened by complementary regulatory instruments, including the United Nations Convention on the Law of the Sea provisions for marine mammals’ protection;7 the Convention on International Trade in Endangered Species of Wild Fauna and Flora listing many endangered or threatened whale species under Appendix I;8 and core regulatory mechanisms such as whale sanctuaries in the Indian and Southern Oceans and an extensive global network of Marine Protected areas.9

Nevertheless, this effectiveness remains constrained by the systematic exploitation of legal loopholes and exemptions on aboriginal subsistence and scientific whaling under Article VIII of the ICRW.10 As demonstrated by the International Court of Justice’s 2014 ruling on Japan’s JARPA II program,11 pro-whaling nations continue operations despite international prohibitions.12 Such compliance failures exacerbate the scarcity of robust enforcement mechanisms within the institutional frameworks.13

Although the international legal framework has successfully reached global consensus on whale conservation, future effectiveness resides in a revised treaty on whaling, aligned with the Rights of Nature movement, to enhance compliance and strengthen enforcement mechanisms.

Whales and the Rights of Nature – toward legal recognition and protection for the benefit of current and future generations


Transitioning towards international legal frameworks on environmental conservation creates opportunities to integrate innovative juridical mechanisms that merge immediate environmental protection through the Rights of Nature movement and advocate for long-term stewardship via the intergenerational equity perspective.

As such, this convergence enables the establishment of dual guardianship systems, where ecological guardians advocate for Nature’s intrinsic rights14 and temporal guardians represent future generations’ interests. Thereby transcending traditional anthropocentric limitations.

Successful precedents include Ecuador’s constitutional commitment to make citizenship coexist with Nature and enforce its rights judicially and New Zealand’s Te Awa Tupua Act granting legal personhood to the Whanganui River through appointed guardianship representation.15 Additionally, while Indigenous Māori and Pacific leaders called for whale legal personhood before the 2023 United Nations General Assembly, the He Whakaputanga Moana Treaty recognised whales as legal persons under international and indigenous frameworks.16

Academics have proven whales’ high intelligence capacity, often qualified as ‘self-conscious beings who can plan, hope and reflect on goals’, making them of primary moral concern.17

Nevertheless, while the Rights of Nature radically shift away from human-centred interests, the movement faces structural limitations as it still operates within human-created legal systems.18

The doubted effectiveness resides within weak legal enforcement, political corruption and regulatory captures that would persist under Rights of Nature frameworks unless directly addressed through coherent legal systems and strict monitoring.19

Way Forward


An improved future requires undertaking transformative legal reforms in whale conservation frameworks. Key measures include granting legal standing to guardians to represent whales’ intrinsic rights, strengthening existing legal regimes with Rights of Nature and intergenerational principles for better enforcement and accountability. Also supporting a United Nations resolution for a permanent commercial whaling ban alongside a “Declaration for the Rights of Whales”.

Innovative governance models are needed to reflect whales’ migratory and borderless nature. This involves mechanisms for documenting whales’ rights breaches, incorporating ecosystem-based management into decision-making processes and adopting adaptive approaches that evolve with scientific understanding.

Unlike territorially grounded natural entities, whales’ migratory status challenges traditional Rights of Nature frameworks. To ensure generational equity, domestic laws should embed Rights of Nature principles with clear compliance timelines. Internationally, whale rights must align with the Biodiversity Beyond National Jurisdiction Agreement,20 recognising whales as part of the global commons and deserving transboundary protection.

This blog post expands on the author’s legal research project supervised by Dr. Onita Das, submitted in 2025.21

References

[1] International Whaling Commission, ‘The Bycatch Mitigation Initiative – Bycatch’ (IWC, 2025). ↩︎

[2] BBC News, ‘Hundreds of Whales Stranded on Scottish Island’ (BBC, 3 January 2020); Seaspiracy (dir Ali Tabrizi, Netflix 2021) 01:01:15. ↩︎

[3] International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (Preamble); P Birnie, ‘The Role of Developing Countries in Nudging the International Whaling Commission from Regulating Whaling to Encouraging Nonconsumptive Uses of Whales’ (1985) 12 Ecology L Q 939. ↩︎

[4] Birnie (n 3) 939; M Fitzmaurice, ‘The International Convention for the Regulation of Whaling and International Whaling Commission – Conservation or Preservation – Can the Gordian Knot Be Cut (or Untangled)?’ (2013) 5 Yearbook of Polar Law 459-461; C Pinon Carlarne, ‘Saving the Whales in the New Millenium: International Institutions, Recent Developments and the Future of International Whaling Policies’ (2005) 24 Va Env’l L J 32-33, 41. ↩︎

[5] Fitzmaurice (n 4) 473-474. ↩︎

[6] AE Boyle, C Redgwell and PW Birnie, Birnie, Boyle & Redgwell’s International Law and the Environment (4th edn, Oxford University Press 2021) 765. ↩︎

[7] Boyle et al (n 6) 750-751, 764; United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, Articles 65, 120, 194(5). ↩︎

[8] Fitzmaurice (n 4) 472; Birnie (n 3) 947; Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243, Appendix I. ↩︎

[9] Boyle et al (n 6) 765; Fitzmaurice (n 4) 476; K Grorud-Colvert K et al, ‘The MPA Guide: A Framework to Achieve Global Goals for the Ocean’ (2021) 373 Science (American Association for the Advancement of Science) 1. ↩︎

[10] Fitzmaurice (n 4) 466-467, 473-474, 477; R Wichert and MC Nussbaum, ‘Scientific Whaling? The Scientific Research Exception and the Future of the International Whaling Commission’ (2017) 18 Journal of Human Development and Capabilities 360. ↩︎

[11] Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226. ↩︎

[12] See Boyle et al (n 6) 765; Pinon Carlarne (n 4) 45-46; M Mangel, ‘Whales, Science, and Scientific Whaling in the International Court of Justice’ (2016) 113 Proceedings of the National Academy of Sciences – PNAS 14525; R Wichert and MC Nussbaum (n 10) 360. ↩︎

[13] Pinon Carlarne (n 4) 45-46. ↩︎

[14] M Bender and R Bustamante, ‘Reimagining Fishing in the Anthropocene Through a Rights of Nature Lens’ (2024) 15 JHRE 163. ↩︎

[15] Ibid 165. ↩︎

[16] C Rodríguez-Garavito, DF Gruber, A Nemeth and G Beguš, ‘What If We Understood What Animals Are Saying? The Legal Impact of AI-Assisted Studies of Animal Communication’ (2025) 52(1) Ecology L Q 47. ↩︎

[17] PS Elder, ‘Legal Rights for Nature – the Wrong Answer to the Right(s) Question’ (1984) 22 Osgoode Hall L J 290. ↩︎

[18] J Bétaille, ‘Rights of Nature: Why It Might Not Save the Entire World’ (2019) 16 JEEPL 54, 57-58. ↩︎

[19] Ibid 63. ↩︎

[20] Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (adopted 19 June 2023, not yet in force) UN Doc A/CONF.232/2023/4. ↩︎

[21] This blog post therefore refers to the state of the law as of early September 2025. ↩︎

Nuremberg Principles and Ukraine: Contemporary Challenges to Peace, Security and Justice

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On 5 November 2025, the Bristol Law School’s Research in Public International Law (RIPIL) group hosted a hybrid workshop and roundtable discussion exploring the continuing relevance of the Nuremberg Principles in the context of the war in Ukraine and other conflicts. Professor Gerhard Kemp, group lead for RIPIL, welcomed the local and international audience and noted that it is the second RIPIL event (and book discussion) for the new academic year, with more to come.

More than 40 international law scholars and academics joined the discussion, both in person and online, representing universities and research centres from the UK, Europe, Africa, Asia and North America, highlighting the global relevance of the Nuremberg Principles today.

As the Russian invasion continues to raise urgent questions of justice and accountability, the principles established at Nuremberg 80 years ago remain a cornerstone of international law. This workshop centred on the recently published volume Nuremberg Principles and Ukraine: The Contemporary Challenges to Peace, Security and Justice (Bloomsbury 2025), edited by Marshall J. Breger and Herbert R. Reginbogin. The book brings together leading international law scholars to examine themes including accountability for the crime of aggression, genocide, the abduction of Ukrainian children, the destruction of cultural heritage and the ongoing evolution of international criminal justice.

Keynote reflections

The keynote was delivered by Professor Herbert R. Reginbogin, Collegiate Law Fellow at The Catholic University of America and co-editor of Nuremberg Principles and Ukraine: The Contemporary Challenges to Peace, Security and Justice. He opened by paying tribute to a late colleague and co-editor of the book whose dedication to justice continues to inspire current efforts in international law.

Professor Reginbogin spoke about the determination of Ukrainian lawyers and researchers working tirelessly to uphold the rule of law prevails and ensure that accountability mechanisms are (set up) and used. He emphasised that the Nuremberg Principles, rejecting impunity for international crimes and immunity for officials,  remain as relevant today as ever, particularly as a new mechanism for prosecuting aggression is being developed in The Hague. He also reminded us of the importance of maintaining the credibility of international courts and of ensuring that they continue to operate in a transparent manner. He also addressed the challenges of corruption and governance within Ukraine, framing the pursuit of accountability as “a commitment to the future” and a necessary step in confronting the difficult questions that accompany war and occupation.

Panel discussion

  • Dr Viviane Dittrich (Deputy Director, International Nuremberg Principles Academy, Germany) reflected on the lasting legacy of the Nuremberg Trials and their ongoing relevance in international law. She emphasised the importance of holding instigators of war accountable, citing the full-scale invasion of Ukraine as a reminder of the need for justice. She closed by paying tribute to Benjamin B. Ferencz, whose motto “Law not War” continues to inspire new generations of legal scholars and practitioners.
  • Professor Stefanie Bock (Philipps University of Marburg, Germany) reflected on the ongoing importance of holding perpetrators of war crimes to account. After emphasising that the Nuremberg Principles have been fully embraced by the German Code of Crimes against International Law, she explained that Germany is currently undertaking structural investigations into international crimes committed in the conflict in Ukraine but has yet to charge anyone..
  • Dr Saeed Bagheri (University of Reading) examined the often-overlooked ‘ecocide’ and environmental dimensions of armed conflict, highlighting the severe ecological damage caused by the Russian invasion of Ukraine – from polluted rivers and destroyed soil to the collapse of critical infrastructure. He argued that such harm raises urgent questions about how international law defines and prosecutes environmental crimes in wartime.
  • Professor Noëlle Quénivet (UWE Bristol) explored the Statute of the Special Tribunal for the Crime of Aggression against Ukraine, highlighting the rigorous legal thinking underpinning its development and addressing misconceptions about its structure and purpose. In particular, she discussed some of the most controversial elements, i.e. its legitimacy, especially as it is set in a European context, and selectivity as well as the immunity given to some officials.
  • Dr Caleb Wheeler (Cardiff University) discussed the complexities of the right to a fair trial when the accused is absent. He noted that while defendants can voluntarily waive their presence, holding a trial entirely in their absence is controversial. Drawing on Nuremberg precedents, he emphasised the need for proper notice and legal representation, warning that without these safeguards, trials risk producing further injustices.

Discussion and closing remarks

The workshop concluded with a roundtable that brought together these diverse perspectives, highlighting the complexities of accountability, justice and human rights in times of conflict. Speakers examined the design and rigour of the Special Tribunal for the Crime of Aggression, the environmental dimensions of war, and the safeguards required to ensure fair trials.

Reflecting on the challenges discussed, Professor Herbert Reginbogin remarked:

“What happens to human rights when war begins? This is the question we, as academics and practitioners, must confront.”

The discussion underscored the ongoing relevance of the Nuremberg Principles and the vital role of scholarship in navigating the evolving landscape of international law. Dr Luke Eda, Senior Lecturer in Law at UWE Bristol, closed the workshop by thanking participants for their contributions to a timely and engaging dialogue. The event demonstrated RIPIL’s commitment to fostering informed debate and research on the legal and moral challenges of contemporary conflict.

To learn more about research and future events, visit Research in Public International Law (RIPIL).

UWE Academics Analyse televised sentencing of criminal courts

Author Faculty of Business and Law | Posted on

Tom Smith, Marcus Keppel-Palmer (both Law), Sally Reardon and Bernhard Gross (both Journalism) recently published their initial analysis of the first 12 months of televised sentencing of criminal courts in England and Wales. Since July 2022, sentencing remarks by judges in Crown Court criminal trials have been filmed and broadcast; yet, despite Government comments lauding this major shift in access to courts, there has yet to be any official evaluation of the benefits, which have been assumed without question. As such, the UWE research team sought to analyse the first year of broadcasting (covering the period July 2022 to July 2022), assessing the types of cases televised and their media usage, with the aim of exploring whether this has in fact contributed to the principle of open justice in a meaningful way.

Overall, they concluded that – notwithstanding any theoretical benefits – the broadcasts offer a unique but limited view of the workings of criminal courts, falling short of the advancements claimed by some officials. Only 33 cases were filmed and uploaded to the ‘Sky News – Courts’ YouTube channel (the public repository for broadcasts), a small fraction of the total number of eligible cases in the first year. Moreover, this low number wasn’t due to refusals to allow filming; broadcast media made only 34 requests to broadcast, with one rejection by a court, indicating a highly selective approach to reporting (akin to the traditional visibility of physical courts through media reporting).

Broadcast cases generally involved extremely serious violence, with two-thirds being homicides, and victims mainly young or elderly. The researchers argue that this significantly skews the potential of broadcasting towards traditional news values (which focus on extreme and sensational crime); and failing to reflect the reality of most criminality, with implications for public understanding and awareness. Additionally, the argument that the public’s understanding of the actual processes of justice would be improved by broadcasting is questionable; only sentencing remarks were filmed, omitting most aspects of criminal justice processes (such as the trial itself) and excluding Magistrates’ Courts – where most crime is dealt with.

Overall, the researchers suggest that broadcasting hasn’t significantly expanded open justice. The portrayal of crime and sentencing remains focused on severe cases and lifelong imprisonment, ignoring common crimes like intimate partner violence, theft, assault, white-collar crimes, and drug offences. Of the 33 cases filmed, over half were not used in TV news bulletins, and only eight appeared in this key conduit for public awareness of current events. Usage of filmed footage by broadcast media was generally minimal, with excerpts often being short clips that failed to provide context, despite often lengthy sentencing remarks by judges. The media have therefore maintained a traditional approach to reporting on criminal courts, using brief clips with graphic descriptions and emotive language. YouTube views were modest, with only two videos surpassing 100,000 views, questioning the true expansion of open justice.

While broadcasts theoretically reveal previously unseen processes and are publicly accessible, their limited and selective nature restricts their impact. Cases selected for broadcast were similar to those covered using traditional methods, arguably doing little to enhance public understanding and engage interest in criminal proceedings in a realistic and representative manner. The researchers therefore concluded that future expansion in broadcasting – which seems inevitable – must go beyond merely changing the medium, and meaningfully extend open justice to truly reflect the reality of crime and justice processes.

Eviscerating the Right to Water in Riparian Communities: Stemming Mining Activities in Ghana 

Author Faculty of Business and Law | Posted on

By Dr Felix Nana Kofi Ofori, UWE Alumni, Member of Environmental Law and Sustainability Research Group 

Introduction 

Throughout the gold-mining communities in Ghana, vast swathes of land, bodies of rivers and streams have turned brownish as a result of unregulated mining activities as well as prospecting for mineral resources. Most alarmingly, the Ghana Water Corporation Limited (GWCL), in 2022, has warned that it will stop supplying water to the Ghanaian population because of the extra high cost of chemicals purchased to treat the heavily polluted water sources in the country. Besides the severe health and environmental impacts being suffered by the people, the following questions are worth answering: Could it be that the right to water is non-existent in Ghana? And would there ever be a political-will by the government to protect access to water? 

To answer the above questions, this blog is organised as follows: the right to water as a state obligation; states’ duty to protect the right/access to quality water; and stemming the challenges of mining operations in Ghana.  

The Right to Water as a State Duty  

Under General Comment No. 15, the Committee on Economic, Social and Cultural Rights (CESCR) emphasised that states have a covenant duty of ensuring the progressive realisation of the right to water without discrimination on grounds of race, status or creed. The use of the word “progressive” is often misconstrued or as a pretext by some states to evade the responsibility of protecting access to water, especially among the poorest and deprived communities, as in the riparian towns of Ghana. Although developing states such as Ghana have limited financial resources to meet the socio-economic needs of their populations, the uniqueness of water as a critical component for the survival of human-beings distinguishes it from all other resources; thus, impelling states (Ghana included), to protect the right to water with altruistic financial and regulatory commitments to guard against water pollution activities. Equally as stipulated in General Comment No. 25, the right to water has three obligations namely the obligation to respect, to protect and fulfil.  

First, the obligation to respect requires States (Ghana included) to refrain from polluting water resources; arbitrarily and illegally disconnecting water and sanitation services; reducing the provision of safe drinking-water to poor communities in order to meet the demand of wealthier areas; destroying water services and infrastructure as a punitive measure during crisis era; or depleting water resources that indigenous peoples rely upon. However, the continuous pollution of water bodies throughout Ghana, particularly in the riparian communities indicate that the right to water is severely damaged or non-existent.  

Second, the obligation to protect requires States to prevent third parties from interfering with the right to water. This also means that States should adopt legislation or other measures to ensure that private actors—e.g., industry, water providers or individuals mining and prospecting for mineral resources—comply with human rights standards related to the right to water.  

Despite the obligation to protect the right to water, the reality on the ground tells a profound story of how the right to water is almost eviscerated. This is evidenced by the rampant illegal mining activities by public and private agencies, coupled with feeble state regulations, to stem the threat which is injurious to human health, biodiversity, environment and sustainable development. 

Third, the obligation to fulfil means States must, among other things, adopt a national policy on water that: gives priority in water management to essential personal and domestic uses;  identifies the resources available to meet these goals; specifies the most cost-effective way of using them;  monitors results and outcomes, including ensuring adequate remedies for violations.  

Contrary to these obligations, the current and successive governments of Ghana had implemented politically expedient or weak regulations incapable to protect water bodies against pollution and environmental degradation. It is further obvious from the preceding discussion that the right to water and the environment, as witnessed in the riparian communities of Ghana are savagely damaged; thus an urgent solution is required to stem the crisis. 

Stemming the Mining Challenges of Ghana’s riparian communities 

A human rights-based approach should be instituted across the country particularly within the riparian communities, emboldening them to participate in decisions that affect water resources management; as well as, hold duty-bearers and private agencies accountable for their actions in polluting water sources and environmental degradation. 

‘Leaving no one behind’ is the key promise of the 2030 Agenda for Sustainable Development. In this vein, Ghana needs to infuse the ‘right to water’ more practically into its sustainable development programmes across all sectors of country; and especially at the community level, where critical resources such as water, biodiversity and plants and fauna are endangered. It also requires that extensive educational programmes are initiated and implemented to enlighten the indigenous people of their rights and obligations as primary custodians to protect and guard against the destruction of their resources including water bodies. 

The Environmental Protection Agency (EPA) (Ghana) should be proactive in monitoring and enforcing existing regulations against harmful chemical uses by both public and private organisations that engage in mining operations. By this, those entities perpetuating degrading activities against the people, water sources and the environment will be prosecuted or fined so as to promote the sustainable development policy and efforts of Ghana. The World Economic Forum ranks the water crisis in the top 3 of global risks for the third consecutive year. Failing to respond effectively to these challenges will have devastating global effects, (Water Action-Decade, 2018-2028). Global crisis calls for global solution, beginning from the national and communal levels. Against this backdrop, it essential that the Ghanaian political leadership adopts creative lasting solution to stem pollution of all water sources in the country  as  a strategy to improve the people’s health thereby minimising the global water crisis of which Ghana is a party. Protecting the right to water is an imperative duty because majority of the people depend on the water bodies within their communities for socio-economic livelihood which in turn guarantee them human rights and dignity.

Will the creation of the crime of ecocide at the international and national level hold those who cause severe and irreversible harm to the environment liable?

Author Faculty of Business and Law | Posted on

By Harry Muir, Third Year LLB student 

Earth is at the precipice of an environmental catastrophe that could result in the mass extinction of life as we know it.[1] Yet, corporate and government leaders are still committing and condoning acts that have a detrimental effect on the environment for profit and personal gain.[2] Although these leaders have the power to change their practices, little is being done to do so.[3] Arguments have therefore arisen that by using existing legal mechanisms, a crime could encapsulate these destructive acts to the environment and climate;[4] this crime is known as ecocide.[5] Ecocide has developed substantially since first being discussed after the use of ‘agent orange’ during the Vietnam war[6] and today, more discourse is taking place that a crime of ecocide could become a tool to save the earth[7] on a fast track to environmental collapse.[8]

This blog post will critically discuss that whilst the introduction of ecocide at a national level could act to hold those who cause severe and irreversible environmental damage accountable, the proposed international crime of ecocide would potentially be far better at achieving this goal.

Ecocide: discussion at the international level

At the international level, there is currently no crime that specifically prosecutes ecocide.[9] In response to this, academics such as Higgins have targeted the International Criminal Court (ICC) to recognise the crime of ecocide as a fifth ‘missing crime against peace’[10] under the Rome Statute[11] especially as ecocide was included in the draft Rome Statute.[12] Critical opinion has focused on the ICC’s existing legal provisions not being sufficient enough; for instance, their only reference to the protection of the environment is in relation to harm caused in wartime[13] which ignores ecocide committed in peacetimes such as severe deforestation[14] or oil spills.[15] An ICC policy paper in 2016 outlined environmental damage could be considered in relation to existing crimes[16] which Mwanza notes, demonstrates a ‘green shift’ at the ICC.[17] This green shift is apparent as a petition against President Bolsonaro for his ‘crimes against humanity’ explicitly references ecocide in relation to the mass deforestation of the Amazon[18] and therefore could be seen as a method to hold those who cause ecocide liable and protect the environment. Pereira is however critical about this shift as the other ‘crimes against peace’ have high mens rea requirements[19] and difficult evidential burdens[20] proving a hindrance to the actual prosecution of environmental harm. Therefore, an international crime of ecocide would be far better suited at holding those who cause destructive acts against the environment liable than existing provisions.

In response to the lack of environmental protections in the Rome Statute, a historic legal ecocide definition was drafted by an independent expert panel (IEP)[21] specifically for the Rome Statute[22] which is as follows:

‘“Ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’[23]

An element of this definition that has been the focus of academic debate has been the ‘wanton’ element which will be discussed. Wantonness arguably imports an ‘anthropocentric element’ which contradicts the entire ‘ecocentric’ nature of the crime of ecocide commented on by Minkova.[24]The implications of this element, according to Keller, mean severe, irreversible, and long-term damage to the environment can be committed[25] so long as there is a good enough reason for it.[26] Thus, corporate and government actors could argue they have committed ecocide for the public benefit therefore limiting accountability if they have the resources to argue their way out of liability.[27] Mehta would however disagree as the crime is still mostly ‘ecocentric’ in a predominantly ‘anthropocentric’ legal system.[28]

It is however argued that deterrence would be a powerful mechanism behind this international crime of ecocide at the ICC.[29] It is important to note that, in order to change the Rome Statute to include ecocide, one signatory must bring an official proposal[30] and only two-thirds of ICC signatories must agree to enable amendment.[31]  This proposal however has the possibility of being effectively ‘timed-out’ when the proposal is not brought within a specific time frame as seen with Bangladesh, Samoa and Vanuatu’s ecocide proposal[32] even so, actual implementation potentially could take up to 5 years.[33] These strict time limits and lengthy implementation dates are of a significant hindrance as again the world is in need of immediate environmental protection to safeguard the future. This being said, as corporation CEO’s want to keep a ‘clean’ reputation,[34] they understandably do not associate with an equivalent crime to genocide or war crimes[35] as this could be detrimental to their business stock price and profit.[36] Academics predict that ecocide’s recognition at the ICC would act to immediately instigate a change in corporate business practises causing ecocide[37] by creating a duty for governments and corporations to not disregard the environment and therefore encouraging the adoption of a green economy.[38] Deterrence would therefore serve as an immensely powerful mechanism to combat crimes of ecocide immediately long before the expected 5-year amendment process into the Rome Statute. These however are only predictions and in the meantime as Greene proposes, national provisions could be created and implemented immediately as an alternative to international provisions.[39]

Ecocide: discussion at the national level

A crime of ecocide in national legislation however comes with enforcement and implementation difficulties which will be critically discussed in light of current national provisions in relation to government and corporations who commit ecocide.[40]

Both Russia[41] and Ukraine[42] criminalise ecocide in their respective criminal codes and in the current context of the war facilitated by Russia, Putin’s acts have constituted ecocide.[43] However, although these provisions exist, they are only as powerful as the countries’ legal system and their respect for the rule of law as commented on by Schwegler[44] which likely means Putin will not be held accountable under existing national provisions.[45]

There has also been difficulty holding corporations accountable under national provisions[46] which is critical as they significantly harm the environment with their actions.[47] A country who has taken a step to hold corporate actors accountable is Guatemala for example, who have recognised an ecocide law which held a palm oil corporation liable for ecocide for causing severe damage to the waterways and the surrounding eco-system.[48] As Greene however illustrates, enforcement of this ruling created difficulties especially as the corporation has now gone back to polluting the river again constituting an act of ecocide[49] arguably not having the predicted deterrent effect discussed earlier.[50] It is therefore no surprise that the implementation of an international crime of ecocide was outlined as the next logical step in response to this ruling.[51]

The UK has been reluctant to criminalise ecocide at a national level with recent proposals to include ecocide as a crime punishable with 30 years’ imprisonment in The Environment Bill[52] being removed after arguments prevailed that economic activity would be severely impacted due to environmental criminalisation.[53] The UK sees ecocide as a barrier rather than an opportunity as they have the resources to be a pioneer and utilise existing green technologies to thrive with nature[54] enabling the development of a ‘green’ economy.[55] France, on the other hand, recently recognised ecocide as an offence punishable with up to 10 years imprisonment or a 4.5 million euro fine.[56] Ecocide was changed from a criminal to a civil offence due to the potential stigmatisation of businesses’ economic activity;[57] however, the prison penalty associated with the crime should still act as a deterrent[58] in protecting the environment.

Conclusion

In light of the arguments presented, criminalisation of ecocide in the Rome Statute would be the best option for holding those who severely damage the environment accountable due to its predicted deterrent effect as a ‘crime against peace’. In comparison, although national ecocide provisions could act immediately to protect the environment, difficulties in enactment and enforcement are major drawbacks to accountability and environmental protection.

[1] Tim Lindgren, ‘Ecocide, genocide and the disregard of alternative life-systems’ [2018] 22 International Journal of Human Rights 525, 528.

[2] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[3] Vanessa Schwegler, ‘The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 81.

[4] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 252-254.

[5] Sailesh Mehta and Prisca Merz, ‘Ecocide – a new crime against peace’ [2015] 17 Environmental Law Review 4.

[6] Saloni Malhotra, ‘The International Crime That Could Have Been but Never Was: An English School Perspective on the Ecocide Law’ [2017] 9 Amsterdam LF 49, 52.

[7] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[8] D Carrington, ‘World close to ‘irreversible’ climate breakdown, warn major studies’ The Guardian (27 October 2022)

[9] E Trigt, ‘A Legal Definition of Ecocide’ (Peace Palace Library, 15 July 2021) <https://peacepalacelibrary.nl/blog/2021/legal-definition-ecocide>

[10] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[11] The Rome Statute of the International Criminal Court art 5

[12] Saloni Malhotra, ‘The International crime that could have been but never was an English school perspective on the ecocide law’ [2017] 9 Amsterdam Law Forum 49, 53.

[13] The Rome Statute of the International Criminal Court, art 8(2)(b)(iv)

[14] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[15] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 196.

[16] Office of the Prosecutor, Policy Paper On Case Selection And Prioritisation, 15 September 2016, <https://www.icc-cpi.int/news/policy-paper-case-selection-and-prioritisation>

[17] Rosemary Mwanza, ‘Enhancing Accountability for Environmental Damage under International Law: Ecocide as a Legal Fulfilment of Ecological Integrity [2018] 19 Melbourne Journal of International Law 586, 598.

[18] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[19] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 215.

[20] Ibid, 211.

[21] Haroon Siddique, ‘Legal experts worldwide draw up ‘historic’ definition of ecocide’ The Guardian (London, 22 June 2021)

[22] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 24-25.

[23] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (June 2021) <https://www.stopecocide.earth/legal-definition>

[24] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[25] J K Heller, ‘Fiddling (With Ecocide) While Rome (and Everywhere Else) Burns’ (Volkerrechtsblog, 18 February 2022) <https://voelkerrechtsblog.org/fiddling-with-ecocide-while-rome-and-everywhere-else-burns/>

[26] J K Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (OpinioJuris, 23 June 2021) <http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/>

[27] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[28] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[29] Ibid.

[30] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[31] K Mackintosh, J Mehta and R Rogers, ‘Prosecuting Ecocide’ (Project Syndicate, 31 Aug 2021) <https://www.project-syndicate.org/commentary/the-icc-should-recognize-ecocide-as-an-international-crime-by-kate-mackintosh-et-al-2021-08>

[32] K Surma, ‘A plea to make widespread environmental damage an international crime takes centre stage at The Hague’ Inside Climate News (Pittsburgh, 7 December 2021)

[33] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[34] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 98.

[35] R Killean, ‘Could criminalising ecocide increase accountability for environmental harm in conflicts?’ (Conflict and Environment Observatory, 22 April 2021) <https://ceobs.org/could-criminalising-ecocide-increase-accountability-for-environmental-harm-in-conflicts/>

[36] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[37] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 86.

[38] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 261.

[39] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 46.

[40]Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[41] The Criminal Code of the Russia Federation No. 63-FZ of June 13, 1996, art 358.

[42] The Criminal Code of Ukraine of September 1, 2001, art 441.

[43] S Smith, ‘This is ecocide’: Ukrainians hope to rebuild greener country after Russian war ravages environment’, The Independent (19 March 2022).

[44] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 94.

[45] R Killean, ‘Legal accountability for environmental destruction in Ukraine’ (Conflict and Environment Observatory, 7 March 2022) <https://ceobs.org/legal-accountability-for-environmental-destruction-in-ukraine/>

[46] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 92.

[47] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[48] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[49] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 21-22.

[50] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[51] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[52] Environmental HL Bill (2019-21) 16, cl 133

[53] HL deb 14 July 2021, vol 813, col 1900

[54] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[55] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 257.

[56] No. 2021-1104 of August 22, 2021, Climate and Resilience Law, art 231-233.

[57] L Alderman and C Meheut, ‘‘Going Green, or Greenwashing? A proposed climate law divides France’ New York Times (19 May 2021)

[58] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

The synergies between the Paris Agreement and the SDGs: An opportunity for national governments to achieve key climate targets

Author Faculty of Business and Law | Posted on

Dr Noah A. Izoukumor, Member of the Environmental Law and Sustainability Research Group

Introduction

The Paris Agreement (PA) was adopted on the 12th of December 2015.[1] The central aim of the PA is to keep global temperature rise below 2 degrees Celsius above pre-industrial levels or even further to 1.5 degrees Celsius.[2] To achieve this aim, Parties to the PA made individual commitments through their Nationally Determined Contributions (NDCs). The ‘NDCs, are actions that Parties to the PA plan to undertake to address climate change’ at the national level.[3] Most of the initial NDCs made commitments to reduce emissions of greenhouse gases by 2030.[4]

 In 2015, the same year the PA was adopted, the United Nations also adopted the Sustainable Development Goals (SDGs) to replace the Millennium Development Goals.[5] The SDGs are 17 aspirational goals and 169 associated targets. The SDGs are also meant to be achieved by 2030.

In other words, both the PA and SDGs were adopted in 2015, and the targets and obligations were to be achieved by 2030.[6] This raises some critical questions about whether it is possible to align the obligations of the PA with key related SDGs, or is it possible to achieve key SDGs targets that are linked with the PA simultaneously since both targets are meant to be achieved by 2030?  On the contrary, it was argued that how the alignment of the PA with the SDGs is possible considering that the SDGs and the PA are two separate instruments.[7]  In this research blog, the aim is to briefly assess the possibility of the alignment between PA obligations with key SDGs, and the key benefits of such alignments at the national level.

Are there synergies between climate change and the SDGs?  

There is emerging research on the integration of climate change and the SDGs.[8]  Nerini and others elaborated on the possible alignment of climate change and SDGs. They acknowledged that in most countries, climate change and sustainable development remain separated.[9] According to them, ‘capitalizing on synergistic actions can enable both sets of objectives to be met more quickly, efficiently and effectively.’[10] 

Antwi-Agyei and Dougill investigated the alignment of SDGs and NDCs.[11] They examined NDCs submitted by 11 West African states and their link to key SDGs.[12] Their investigation shows the strong commitment of West African countries to food security which can be aligned with related SDGs.[13] They argued that this alignment provides opportunities for national development on the low carbon pathway.[14] 

Also, a critical assessment of the provisions of the PA and the SDGs unveils that there is a synergy between the PA and some of the SDGs. For instance, SDG targets 15.2 and 15:3 deal with combating desertification and sustainable management of all forests. These targets 15.2 and 15:3 of the SDG are related to Article 5 (2) of the PA, which emphasised sustainable forest management practices. Also, SDG targets 7:1 and 7:2 deal with the development of renewable energy. These targets have a direct link with Article 10 (1) (2) Paris Agreement which emphasised the development of technology.

The above examples show that there is a link between the PA and some key SDGs. The implication of the relationship between the PA and the key SDGs is that the achievement of the targets of the PA could lead to the achievement of related SDGs targets. So, the next question is what the likely benefits of the synergies between the PA and the SDGs are.  

The benefits of synergies between the PA and SDGs

The synergies between the PA and key SDGs present an opportunity to collaborate amongst key relevant climate change Ministries, Departments and Agencies (MDAs), and SDG implementation agencies.[15] Recent development in countries like Mexico, Colombia, and Vietnam show how MDAs and SDG implementation agencies can collaborate and implement key related targets in both SDGs and PA.

In 2017, three MDAs in Mexico collaborated to implement SDG and NDC targets.[16] The office of the President of Mexico, which is responsible for the SDG implementation, the Ministry of Environment and Natural Resources, and the National Institute of Ecology and Climate Change which are responsible for the NDC support close coordination of SDG and NDC implementation.[17] Also, in Japan, there is a well-coordinated institutional arrangement of SDG and NDC implementation. Relevant institutions for the implementation of SDG and NDC are led by the Global Warming Prevention Headquarters, chaired by the prime minister, including relevant cabinet ministers.[18] In Colombia, an Inter-Agency Commission is established to implement the Post-2015 Development Agenda.[19] In Vietnam, a National Council for Sustainable Development and Competitiveness Enhancement and a working group of the Council were established. These two organisations are to address key achievable SDGs that are linked to climate change.

Again, the nexus between the PA and key SDGs will enable key climate change-related MDAs to match budgets and channel funds to key priority areas such as the energy and forest sectors. This is exactly what the Mexican government did where MDAs were requested to match budget programmes to the top priority areas of SDG and national goals.[20]

However, there are key challenges to the alignment between PA and SDGs. First, climate change instruments and the SDGs agenda have their respective histories and already established implementation agencies in different sectors.[21] This means there are likely issues of functional overlap among ministries while implementing interlinkages. Second, the alignment could lead to a trade-off with perceived unaligned SDGs.[22] This means that national governments may give less attention to SDGs that are not directly linked to climate change obligations, such as SDG 4, which talks about free education.

Despite the likely challenges, it is argued that the benefit of aligning the PA and the SDGs cannot be overemphasised. The alignment presents an opportunity for national government agencies to collaborate, and channel funds to key related targets in both PA and key SDGs. The collaboration will enable both sets of objectives to be met more quickly, efficiently, and effectively.[23] 

References

[1]L Rajamani, ‘The Warsaw climate negotiations: emerging understandings and battle lines on the road to the 2015 climate agreement’(2014) 63(3) International & Comparative Law Quarterly 721-740; L Rajamani, ‘The Durban platform for enhanced action and the future of the climate regime’ (2012) 61 (2) International & Comparative Law Quarterly,  501-518.

[2] Article 2 UN General Assembly, United Nations Framework Convention on Climate Change/ Adopted at the COP 21 in Paris, France, 12 December 2015 FCCC/CP/2015/L.9/Rev.1 accessed 1st April 2022.

[3] FZ Taibi and S Konrad, Pocket Guide to NDCs under the UNFCCC (ECBI 2018) 1-2.

[4] For instance, the EU and its member states committed to a domestic reduction of 40% by 2030. See Intended Nationally Determined Contribution of the EU and its Member States (2015) available at  LV-03-06-EU INDC (unfccc.int)> Accessed  2nd April 2022.

[5]Millennium Development Goals and beyond 2015 < United Nations Millennium Development Goals > Accessed 6th April 2022.

[6] However, net zero emission is possible by 2050 and most countries have updated their NDCs in line with 2050 deadline. See The update of the nationally determined contribution of the European Union and its Member States available at EU_NDC_Submission_December 2020.pdf (unfccc.int) Accessed  7th  April 2022.

[7] Paragraph 55. UN General Assembly, transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.; K. Shamin and R Kibugi, ‘Brief on Sustainable Development Goal 13 on Taking Action on Climate Change and Its Impacts: Contributions of International Law, Policy and Governance’ (2017) 13 McGill Journal on Sustainable Development Law 183.

[8] P Antwi-Agyei and others, Identifying Opportunities for Coherence between the Intended Nationally Determined Contributions, and the Sustainable Development Goals:  The Case of ECOWAS Member States (Sustainability Research Institute School of Earth and Environment 2017) 5; The State of The World’s Forest, Forest Pathway to Sustainable Development, (Food and Agriculture Organization of the United Nations (2018) 100-107, available at < http://www.fao.org/3/I9535EN/i9535en.pdf > Accessed 2nd April 2022; Climate Change and SDG Synergy Conference, Background Paper Leveraging Climate Change and SDG Interlinkages: Country Experiences (TERI School of Advanced Studies for UN DESA 2019) available at < https://sustainabledevelopment.un.org/content/documents/22155Background_PaperTERILeveraging_Climate_Change_and_SDG_Interlinkages.pdf > Accessed 2nd April 2022 ; Food and Agriculture Organization of the United Nations,  Climate-smart agriculture Sustainable Development Goals, Mapping interlinkages, synergies and trade-off s and guidelines for integrated implementation (Food       and Agriculture Organization of the United Nations Rome, 2019) 84-101 available at<  http://www.fao.org/3/ca6043en/ca6043en.pdf  > Accessed 2nd  April 2022; V Masson-Delmotte,  T Waterfield and others (eds), Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC 2018)  19 -20, available at https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf > Accessed 3rd April 2022.                

[9]  F Nerini and others , ‘Connecting climate action with other Sustainable Development Goals’ (2019) 2 (8) Nature Sustainability, 674-680 at 678.

[10] Ibid.

[11] P Antwi-Agyei and A Dougill, How best to align planning for Nationally Determined Contributions and Sustainable Development Goals:  West African Lessons (Sustainability Research Institute School of Earth and Environment 2018) 2.

[12] Ibid .

[13] Such as SDGs 1, 2, 6, 7, 13 and 15. Ibid .

[14] Antwi-Agyei and others (n 11).  

[15] M Bouyé, S Harmeling and NS Schulz , Connecting the dots: Elements for a joined-up implementation of the 2030 Agenda and Paris Agreement (Deutsche Gesellschaft für Internationale Zusammenarbeit 2018) 16; Sustainable Development Goal Knowledge Platform, Global Conference on Strengthening Synergies between the Paris Agreement and the 2030 Agenda for Sustainable Development: Maximizing Co-Benefits by Linking Implementation across SDGs and Climate Action (United Nations 2019) at 50 available at <https://sustainabledevelopment.un.org/climate-sdgs-synergies2019 > Accessed 6th April 2022.

[16]  Bouyé and others (n 15).

[17] Ibid.  

[18] Sustainable Development Goal Knowledge Platform (n 15).

[19] OECD, Opening of the Inter-ministerial Commission on OECD Affairs, Opening remarks by Angel Gurría OECD Secretary-General October 2019 – Bogota, Colombia.

[20] Bouyé and others (n 15) 48.

[21]Sustainable Development Goal Knowledge Platform (n 15).

[22] Sustainable Development Goal Knowledge Platform(n 15).

[23] Nerini and others (n 9).  

Stifling Access to Sanitation through Privatisation of Public Facilities in Ghana: The Cases of Human Rights and Dignity

Author Faculty of Business and Law | Posted on

Blog by Dr. Felix Nana Kofi Ofori, REACT Humanitarian Network, Oxford, UK. Former PhD student, Bristol Law School, UWE Bristol.

Human well-being, now and in the future, depends on a healthy environment characterised by access to safe sanitation in society. [1] This blog examines the challenges confronting majority of Ghanaians whose access to sanitation, is hindered by privatisation and limited provision of public facilities; and where these are available, they are exorbitantly expensive thereby stifling and violating the dignity and human rights of the people. [2]

Access to sanitation as a right, evokes controversies in international human rights jurisprudence compared to the conventional rights. However, it is no secret within the Ghanaian society, that majority of the citizenry in cities, regional centres, including the remotest communities of the country, lack access to sanitation. [3] Fundamentally, lack of access to sanitation is a violation of the human rights and dignity of Ghanaians; as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), [4] as adopted by the United Nations General Assembly (UNGA), in 2010).[5] However, under Ghana’s liberalisation and privatisation agenda, which was promoted by the IMF/World Bank[6], majority of public toilet/latrine facilities in the country were privatised with a view  to enhance the efficient management and provision of services for the people. Furthermore, since all human rights are interdependent there is little doubt that access to sanitation is critical to achieving human dignity which is at the fore-front of protecting human health.[6a] [6b]

As society evolves so the ambit of rights grow to protect and promote the welfare and dignity of peoples globally, and particularly in this context, Ghana. Sanitation is crucially one area in which the dignity of most Ghanaians is violated because of the failure of successive governments to establish facilities to protect this right. [7] In its preamble, the United Nations Charter provides that “all human beings are born free and equal in dignity and rights. [8] Thus, there can be no realisation of human rights without respect for human dignity; therefore, sanitation should be given critical priority by the government in allocating budgetary and physical resources to ensure that Ghanaians gain access to effective sanitation services. The duty to establish sanitation and hygiene facilities in Ghana as other countries, spans three obligations- availability, accessibility and affordability. [9] 

First, availability means that the government establishes public sanitation facilities within reasonable distance of the people’s reach; whilst, ensuring that poorer communities are not denied access to sanitation for want of paying. [10] Second, accessibility, is defined by the WHO-UNICEF Joint Monitoring Programme and Water Supply, Sanitation and Hygiene, as a standard 30 minutes time for someone to go to and return from a sanitation facility. [11] Also, it is the responsibility of the government and local authorities to ensure that children and persons with disabilities coupled with the location of the sanitation facilities do not impede access to such services. Third, affordability, as a human rights criterion, requires that “access to sanitation facilities and services be made reasonably affordable to all peoples, especially in the poorer part of cities and deprived communities of a county”. [12] Whilst the UNDP sets a threshold of 3 per cent, that by the Organization for Economic Cooperation and Development is 4 per cent and that by the Asian Development Bank is 5 per cent respectively. [13] Despite the above established thresholds, the government and public agencies responsible for sanitation services in Ghana, continue to violate the right to sanitation; by failing, to adopt creative strategies to ameliorate any hardships pricing mechanisms impose on the people regarding access to sanitation services.

Strategically, the World Bank plays vital roles in the development of nations, especially Ghana, by offering financial and policy directions to help them improve their socio-economic services of which sanitation constitutes an integral part. Privatisation of water and sanitation services is one area in which the World Bank’s strategic guidance had created mixed consequences in Ghana. The World Bank opines that private participation in the sanitation services is beneficial to the state and its people because it introduces efficient and judicious management of services; and it secures the requisite funding to repair and maintain old infrastructures. [14] Conversely, larger parts of communities in cities and town throughout Ghana practise open defecation due to limited or non-availability of sanitation facilities. [15] The majority view is that privatisation not only stifles access to sanitation in further violation of the people’s dignity, but also breaches established obligations of governments to protect access to sanitation, as enshrined in International human rights law. [16] This resonates with the premise that economic and political expediencies coupled with national policies cannot be deployed by the government and its agencies to commit blatant illegalities concerning the implementation of privatisation agenda.

Primarily, the right to sanitation is considered as a private responsibility enjoining the individual to build his/her own latrine or pay to connect to the sewerage system; however, where individuals cannot afford to pay for this responsibility, the state has to bear this duty in two respects. First, the State should adopt the necessary measures such as tariff schemes or subsidies to ensure that services are affordable; and second, implement practical framework and enabling environment to guarantee access to sanitation. [17]

Copious evidence suggest that privatisation stifles access to sanitation which in turn undermines the human rights and dignity of Ghanaians, especially those in poorer communities, who lack the financial backing to either build or pay for sanitation services. The right to sanitation is an enshrined human right obligation of governments in the international community, including Ghana, requiring that access is protected and promoted without citing arguments of economic, social or political expediencies. Although Ghana has finite resources like other states, it is obliged to allocate portion of its budgetary resources to ensure that access to sanitation and hygiene facilities are progressively realised in accordance with international and constitutional mandates. Similarly, the duty to protect access to sanitation extends to supervising the implementation of privatisation contracts without compromising the dignity and human rights of Ghanaians.

References

[1] <www.ohchr.org/EN/Issues/WaterAndSanitation/SR/Water/Pages/Progressiverealization.aspx. >Accessed December 13, 2021.

[2]Transforming our World: The 2030 Agenda for Sustainable Development (General Assembly Resolution 70/1, para. 5).

[3] UNICEF Ghana: “Water, Sanitation and Hygiene” < https://www.unicef.org/Ghana/Water-Saniation-and-Hygiene> Accessed December 14, 2021.  

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) UNTS, Art. 2 (1)

[5] Special Rapporteur on Human Rights to Safe Drinking Water and Sanitation, Caterina de Albuguerque, Report, Mission to Egypt, 50, UN. Doc.A/HRC/15/31/Add.3 (Jul. 5, 2010).

[6a] Vienna Convention on the Law of Treaties (1969),  Adopted May 23, 1969, entered into force on January 27, 1980, United Nations, Treaty Series, vol. 1155,p 331.

[6b] The World Bank-FAQ-World Bank Group Support for Water and Sanitation Solutions<https://www.worldbank.org/en/topic/water/brief/working-with-private-sectors-to-increase-water-sanitation-access > Accessed December 14, 2021.

[7] Gould, C. and Brown, C. Sanitation Challenge for Ghana Dignified City Award (Stage 2), May 2020, IMC Worldwide.

[8] The Charter of the United Nations and the Statute of the International Court of Justice, UN, New York (1997) 3.

[9] A/HRC/45/10, “Progressive Realization of the Human Rights to Water and Sanitation” Report of the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation, September 14- October 2, 2020.

[10] A/HRC/45/10, Ibid. see note 9, para. 35

[11) Ibid. see note 9, para. 37

[12] Ibid. see note 9, para. 39

[13] A/HRC/30/39, Report of the Special Rapporteur  on the Human Right to Safe Drinking Water and Sanitation: Addendum, para. 25.

[14] The World Bank –FAQ – World Bank Group Support for Water and Sanitation Solutions < https://www.worldbank.org/en/topics/water/brief/working-with-private-sectors-to-increase-water-sanitation-access-> Accessed December 14, 2021.

[15] The World Bank, Ibid.

[16] Winkler, T.I., The Human Right to Sanitation (2016), University of Pennsylvania Journal of International, Vol.37 (4) 1331-1406.

[17] Eide, A., Economic, Social and Cultural Rights as Human Rights in Economic, Social and Cultural Rights- Textbook, 9, 24 (Asbjorn Eide, Catarina Krause and Allan Rosas eds, 2nd ed., 2001)

The role of judiciary in climate change litigation – the rise of a promising opportunity to combat climate change

Author Faculty of Business and Law | Posted on

By Christina Schroeder, LLM Student, Member of Environmental Law and Sustainability Research Group.

Climate change and how to combat it is an omnipresent issue. Whereas in the past climate change and its consequences were talked down, they are now seen as the “biggest threat modern humans have ever faced”[1] and referred to as a “crisis multiplier”[2] with the need to act in time, requiring global cooperation.[3]

The previous attempt to achieve climate protection at the political level by means of the Paris Agreement[4] can be considered a failure due to the lack of implementation[5] by the states.

This is where the consideration comes into play as to whether court rulings offer a possibility to effectively combat climate change. Climate change litigation is also increasing due to the influence of many young people who are campaigning for more climate protection with the help of the courts or by organising global climate strikes.[6]

There are several reasons why courts can provide an opportunity to effectively combat climate change through their judgments. In contrast to climate agreements as for example the Paris Agreement, courts take a clear line. Cases have to be decided and thus a clear result has to be reached; while political leaders so far have failed to implement measures to reach targets of the Paris Agreement.[7] Courts are also suited to their function of enforcing decisions promoting more climate protection. In the context of climate change litigation, judicial lawmaking is also becoming increasingly important. Courts decide whether existing laws need to be reinterpreted or amended when they are deemed unfair in their application to specific cases.[8]

Judicial successes in effectively combating climate change can be seen in several landmark rulings, especially in strategic cases[9] where courts make decisions by ordering the improvement or revision of current laws,[10] as in the cases of Friends of the Irish Environment v Ireland[11] and Neubauer et al. v Germany.[12]  For example, in the case of Friends of the Irish Environment v Ireland[13] the Supreme Court of Ireland quashed the National Mitigation Plan, as the court found that the plan was not detailed enough to effectively reach the goals within Ireland’s 2015 Climate Act.[14] The court also argued that especially for a normal citizen, the plan was not sufficiently specific enough relating to what actions would be taken until 2050 to give effect to the 2015 Climate Act of Ireland.[15] In this respect, the decision of the Supreme Court of Ireland has set the course for the fight against climate change but has so far contributed little to it due to a lack of political implementation of a new Mitigation Plan.

Recently in 2021, the German Federal Constitutional Court decided that the Federal Climate Change Act[16] does not sufficiently protect the future generations from the impacts of climate change.[17] The Court also found a duty of the German government to actively protect life and health of its citizens.[18] After the ruling in Germany, the German government initiated an amendment of the Climate Protection Act in a record time.[19] Under the amended Climate Protection Act by the German government from 24 June 2021, the climate protection targets have been tightened and now aim for Germany to become greenhouse gas neutral by 2045 which is five years earlier compared to the previous target in 2019 and also ahead of the EU’s target date.

Some court cases are also aiming to put pressure on the legislator to do more for climate protection. This can be seen in the cases of the Dutch Supreme Court deciding the case of Urgenda Foundation v. State of the Netherlands[20] in 2019 which identified a legal duty of the government to prevent and combat climate change more actively;[21] and the Colombian Supreme Court ruling in 2018 in favor of 25 children in Colombia who sued the Colombian Government for failing to prevent deforestation and therefore not taking actions against climate change.[22]

In Urgenda case, the Dutch Supreme Court invoked the government’s human rights obligations. In order for these to be fulfilled, the court orientated itself on a proposed common ground, which is the targeted reduction of greenhouse gases.[23] This ruling in particular is seen as very successful due to its transferability to other European countries and has already given rise to similar climate lawsuits.[24]

In the Demanda Generaciones Futuras case, the Colombian Supreme Court ordered the government to develop a plan for environmental protection of the Amazon, and at the same time declared the Amazon as an entity with own rights to be protected from destruction. Despite this important ruling, the government has not been able to adequately protect the Amazon.[25] This is not due to the ruling of the Colombian Supreme Court itself, which aimed for comprehensive protection, but solely to the lack of initiatives and measures adopted by the political leaders. Indeed, the approach of using the ‘Rights of Nature’ to protect nature is problematic in this respect, as nature is dependent on human representation. This can work well, as in New Zealand, where the Whanganui River[26] is represented by indigenous people. In contrast, the consideration of granting rights to the Great Barrier Reef remains a concern due to a lack of representation.[27]

The cases above show that courts can be an effective way to combat climate change.

In the context of behavioral effectiveness, the courts are moderately successful, as these decisions cannot directly influence people and their behavior, but they can indirectly influence people’s behavior by stimulating social debate and media attention.[28] In addition, courts can exert direct influence on legislators through their rulings.[29] This is also done while preserving the separation of powers, since despite judicial lawmaking, courts do not become politically active. Thus, the judiciary’s role to solve problems remains complicated. This is due to the fact that the separation of powers and the role of the courts require both political and social components in order to effectively implement a decision.[30] Courts cannot fight climate change on their own, but they can positively promote it.

[1] United Nations Security Council, Press Release SC/14445 ‘Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation’ 23 February 2021 <https://www.un.org/press/en/2021/sc14445.doc.htm> accessed 14 June 2021.

[2] Ibid.

[3] Ibid.

[4] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[5] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ Max Planck Encyclopedia of Procedural Law (2019) <https://halshs.archives-ouvertes.fr/halshs-02281274/document> No.4 accessed 24 August 2021.

[6] Ibid.

[7] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ (n 5) No.4.

[8] Ibid.

[9] Orla Kelleher, ‘The Supreme Court of Ireland’s Decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’ (EJIL, 9 September 2020) <https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/> accessed 9 July 2021.

[10] Joana Setzer, Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (Policy Report July 2021) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf> 12, accessed 9 July 2021.

[11] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[12] Neubauer et al. v Germany, Court order of 24 March 2021, 1 BvR 2656/10.

[13] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[14] Climate Action and low Carbon Development Act 2015, 46/2015, into force on 10 December 2015.

[15] Mary Carolan, ‘Supreme Court Quashes Government’s Plan to Reduce Greenhouse Gases’ (The Irish Times, 31 July 2020) <https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-quashes-government-s-plan-to-reduce-greenhouse-gases-1.4318578> accessed 10 July 2021.

[16] Climate Protection Act Germany (Klimaschutzgesetz), into force on 12 December 2019, amended on 24 June 2021.

[17] Ralf Bodle, Stephan Sina, ‘The German Federal Constitutional Court’s Decision on the Climate Change Act’ (Ecological Institute Berlin, 2021) <https://www.ecologic.eu/18104#:~:text=In%20a%20decision%20published%20in,by%20the%20end%20of%202022> accessed 10 July 2021.

[18] Ibid.

[19] Alice Boldis, Christian Lütkehaus, ‘How a Court Ruling Changed Germany’s Climate Protection Act’ (Pinsent Masons, 20 July 2021) <https://www.pinsentmasons.com/out-law/analysis/court-ruling-germany-climate-protection-act> accessed 2 August 2021.

[20] Urgenda Foundation v The State of the Netherlands (20 December 2019) 19/00135.

[21] Urgenda, ‘Landmark Decision by Dutch Supreme Court’ (Urgenda.nl, 2020) <https://www.urgenda.nl/en/themas/climate-case/> accessed 5 August 2021.

[22] Demanda Generaciones Futuras v Minambiente, Colombian Supreme Court (5 April 2018) STC 4360-2018.

[23] Laura Burgers, André Nollkaemper, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’ (EJIL, 6 January 2020) < https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/> accessed 8 August 2021.

[24] Anke Wonneberger, Rens Vliegenthart ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (n 45) 699.

[25] Alex Guillau, ‘The Colombian Government has Failed to Fulfil the Supreme Court’s Landmark Order to Protect the Amazon’ (Dejusticia, 5 April 2019) < https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/> accessed 25 August 2021.

[26] New Zealand, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 / Rapid Transition Alliance, ‘The Rise of the Rights of Nature’ (Rapid Transition, 11 March 2019) <https://www.rapidtransition.org/stories/the-rise-of-the-rights-of-nature/> accessed 16 August 2021.

[27] Randall S. Abate, Climate Change and the Voiceless (Cambridge University Press 2019) 161.

[28] Anke Wonneberger, Rens Vliegenthart, ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (2021) 15 Environmental Communication 699.

[29] Jaqueline Peel, Hari M. Osofsky, ‘Clime Change Litigation’ (2020) Annu. Rev. Law. Soc. Sci.33.

[30] Luke Elborough, ‘International Climate Change Litigation: Limitations and Possibilities for International Adjudication and Arbitration in Addressing the Challenge of Climate Change’ (2017) 21 NZ J Envtl L 125.