International Law

Unlock Your Potential: Join the CHASE Doctoral Training Partnership at Essex Law School

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Are you an aspiring legal scholar with a hunger for advanced training in law and a thirst for a vibrant research environment that fosters innovation and interdisciplinary exploration?

If the answer is a resounding ‘yes,’ then the CHASE Doctoral Training Partnership at Essex Law School could be your ticket to an exciting and transformative journey in the world of academia.

What is CHASE?

The Consortium for Humanities and the Arts South-East England (CHASE) is not just any doctoral training partnership; it is an AHRC-funded initiative that is carving out a path for the next generation of world-leading arts and humanities scholars.

Comprising nine prestigious institutions engaged in collaborative research activities, including an AHRC doctoral training partnership, CHASE is a gateway to an intellectually stimulating and supportive academic community. And we are proud to announce that the University of Essex is one of the esteemed members of this exceptional consortium.

Here at the Essex Law School and Human Rights Centre, our students and applicants to our PhD programme are eligible to apply for CHASE studentships and take advantage of the unparalleled training opportunities offered by this partnership.

CHASE is dedicated to supporting discipline-based projects, but what sets it apart is its specialisation in interdisciplinary research and emerging fields of study and creative practice. If you are looking to pioneer new methodologies, CHASE provides a great platform for your academic aspirations.

Moreover, CHASE does not just stop at academic prowess; it extends its reach to powerful partnerships with leading organizations in the creative and public sectors. This collaboration is a goldmine of opportunities for future CHASE scholars, providing a network of connections that few other programmes can match.

Why choose the Essex Law School?

The choice of where to embark on your doctoral training is not one to be taken lightly. At the Essex Law School, we have worked hard to create an environment that nurtures excellence, fosters innovation, and empowers our students to become leaders in their chosen fields.

Here is why you should consider joining us:

We are a research powerhouse. Our Law School has been ranked 3rd in the UK for research power in law according to the Times Higher Education research power measure (REF2021). This speaks volumes about the calibre of research conducted within our institution. Our academic staff collaborates with the United Nations, governments, human rights organizations, and corporations worldwide.

We believe that the best research happens at the intersection of various disciplines. This is why we encourage innovative and interdisciplinary approaches to legal research. Our research clusters bring together colleagues from different backgrounds to work on collaborative projects, creating a stimulating and diverse intellectual environment.

Our academics are the heart and soul of the Essex Law School. They bring a wealth of expertise across a wide range of legal disciplines. We are proud to have some remarkable scholars in the field, with particular strengths in areas of intellectual leadership, including Human Rights Law, led by Dr. Andrew Fagan who is Director of the Human Rights Centre; International & Comparative Law led by Professor Yseult Marique, an associate member of the International Academy of Comparative Law; Private and Business Law, led by Professor Christopher Willett who also spearheads the Law, Business and Technology Interdisciplinary Hub; as well as Public Law & Sociolegal Studies, led by Professor Theodore Konstadinides, who is also a founder member of the Constitutional and Administrative Justice Initiative (CAJI).

Our academic leads are more than willing to provide guidance and connect you with the right members of our academic staff.

Our thriving community of research students is at the heart of our success. These talented individuals investigate a broad range of exciting topics under the supervision of our academics, creating a rich tapestry of ideas and insights.

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Where can you find out more?

Are you intrigued to explore what the CHASE Doctoral Training Partnership at the Essex Law School can offer you? Join us for an information session on the CHASE student-led studentship scheme on 18 October 2023, from 12:30-1:30 pm (UK Time), via Zoom. This is the perfect opportunity to learn more about eligibility, application processes, and the incredible benefits that await you.

For further details, eligibility criteria, and application procedures, please visit our web pages here. For questions relating to legal research and the CHASE scheme, please contact our Postgraduate Research Director, Dr. Anil Yilmaz Vastardis. If you have other specific questions about academic disciplines, do not hesitate to reach out to our academic leads (mentioned above) who are here to guide and inspire you on your academic journey.

Your journey to becoming a world-leading scholar in the field of law begins here. Do not miss this chance to be part of the CHASE Doctoral Training Partnership at Essex Law School, where innovation, excellence, and transformation are the name of the game. Your future awaits – seize it with both hands!

Accountability for Digital Harm Under International Criminal Law: In Conversation With Sarah Zarmsky

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Sarah Zarmsky, PhD Candidate and Assistant Lecturer at the Human Rights Centre, is a recipient of the 2023-2024 Modern Law Review Scholarship for her PhD thesis ‘Accountability for Digital Harm Under International Criminal Law’, supervised by Professor Carla Ferstman (University of Essex) and Dr Daragh Murray (Queen Mary University of London).

Sarah was awarded the Mike Redmayne Scholarship, instituted in memory of past MLR Committee Member Professor Mike Redmayne, which is presented to the best applicant in the fields of Criminal Law and the Law of Evidence (and related fields).

Modern Law Review Scholarships are prestigious awards provided to doctoral researchers in the United Kingdom and are funded by the Modern Law Review. Sarah is the first candidate from the University of Essex to receive the scholarship!

The research visibility team talked to Sarah about her success and took the opportunity to find out more about her plans:

This is an impressive achievement. How does it feel to bring this award to the University of Essex for the first time?

Thank you! It feels great, I’m very proud of it and to be part of such an impressive group of recipients. It’s very rewarding to have your research, that you invest so much hard work in, be recognised by others, especially by a journal as reputable as the Modern Law Review.

Could you tell us a bit more about your research? What gaps or shortcomings have you identified when it comes to addressing digital harm in the context of international criminal law?

My research examines how digital harm with relevance to the perpetration of international crimes may or may not be accommodated within existing international criminal law frameworks. Where criminalization may not be appropriate or feasible, it identifies possible alternatives for obtaining justice for victims of digital harms, such as through corporate criminal liability or regulatory frameworks.

I think the main takeaway so far is that the law has not yet ‘caught up’ with new ways of inflicting harm through technology, and depending on the type of harm, international criminalisation may or may not be the answer. There are some digital harms where we can see a clear link to existing international crimes, such as online hate speech and incitement to genocide, or sharing footage of crimes as an outrage upon personal dignity. It will be harder to accommodate more ‘novel’ types of harms, such as algorithmic harms or digital mass surveillance with ICL as it stands, so I am entering the stage of my research where I explore complementary strategies for achieving justice for victims of those harms.

In a single sentence, how would you summarise the importance of your research when describing it to an undergraduate student?

New technologies are important for advancing accountability for international crimes, but they also create new ways to perpetrate existing crimes or entirely new crimes, so this research is important in laying the foundation for future discussions as to how international criminal law can best accommodate digital harms.

With the evolving nature of digital threats and the global nature of the internet, how can international cooperation and collaboration be fostered to ensure effective accountability mechanisms for digital harm? Are there any notable examples or initiatives you could share that illustrate promising efforts in this area?

This is a complex question, but to answer it briefly, I would stress that as an international community, we need to be recognizing how harmful new technologies can be if used maliciously and that these harms are grave enough to be international crimes. I think sometimes the technology aspect can be roped in with other more ‘traditional’ offences and not treated as crimes on their own, which can result in less tailored justice for victims.

There are some promising developments in domestic war crimes trials, such as in The Netherlands, Germany, and Sweden, where individuals have been convicted and sentenced for war crimes for sharing degrading footage of executions on social media. I think these are positive developments because they serve the expressive function of recognizing how humiliating and degrading it can be to share footage of people in their most vulnerable states, and send a message that this is a serious crime.

This has not yet happened at an international criminal court or tribunal, but with the rise of open-source evidence initiatives at the ICC for example, I think it could definitely be a possibility going forward.

Do you anticipate your research will influence policy and if so, how?

I hope that my research can provide guidance for how ICL lawmakers and practitioners can ensure that the law keeps up with the times to fully address new ways of inflicting harm through technological means. My goal is to bring these issues to light and hopefully spark discussions within the ICL community about how we can account for digital harms moving forward.

Which direction do you see your research going in the future and why?

I’m now entering the third year of my PhD, during which I plan to apply my research thus far to one or two case examples and be able to highlight how the theory might work in practice, which I think will be really valuable. After the PhD, I would like to continue in this realm of ICL, human rights, and new technologies, perhaps delving deeper into one of the specific digital harms with a nexus to international criminal law that I have identified in the thesis.

Illegal Migration Bill: Essex Law School experts on the international system of protection against arbitrary detention express concerns in their written evidence to the JCHR

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On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.

Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).

The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.

Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.

Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.

Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.

garahan_gillett_illegal-migration-bill_jchr-evidenceDownload

A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice

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Dr. Miracle Chinwenmeri Uche concluded her PhD programme under the supervision of Professor Lars Waldorf, Dr. Marina Lostal and Dr Clotilde Pegorier. Her thesis is titled ‘Victim-oriented Complementarity is the Key: A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice’.

The thesis examined the International Criminal Court (ICC) principle of complementarity through the lens of victim-oriented justice, i.e., justice that considers and accommodates victims’ needs and interests procedurally and substantively within the limits of criminal justice processes.

Complementarity, the chosen form of jurisdictional relationship between the ICC and its States Parties, is key to the Court’s existence and sustainability. It is inter alia a tool for deciding who between the ICC and states, can exercise jurisdiction over war crimes, crimes against humanity, genocide, and aggression (core international crimes).

For victims of core crimes, complementarity is much more than that; it has implications on whether justice will be served, who will investigate and where necessary prosecute — the ICC or states? Where will these proceedings take place, in The Hague or in domestic jurisdictions? Which victims can participate? How will justice be shaped?

Given the centrality of the principle of complementarity to the Rome Statute system, the thesis’ main aim was to propose ways for turning complementarity into a fulcrum for the pursuit of victim-oriented justice in the Hague and fostering the same in domestic jurisdictions.

For this purpose, the thesis asked two main research questions; firstly, how has the ICC interpreted and applied the principle of complementarity in relation to victims? Secondly, how can victims’ interests be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice? To address these questions, the thesis analyzed the ICC’s complementarity, and victim jurisprudence using the doctrinal research method.

In response to the first research question, the thesis argued that victims’ needs, and interests were minimally considered in the development of the principle of complementarity; the focus was on sovereignty protection and prosecutorial issues. This is replicated in complementarity provisions within the Rome Statute, the ICC’s case law and practice. Admissibility determinations at the ICC tend to focus on issues of investigations and prosecutions of a small number of situations and cases, and the exercise of jurisdiction by the Court or states. This problem is exacerbated by the structure of the ICC’s main complementarity body — the Jurisdiction, Complementarity and Cooperation Division (JCCD) which does not include a victims’ representative. The thesis argued that sustaining a sovereignty and prosecutorial-focused approach to complementarity will circumscribe, if not eclipse the ICC’s ability to pursue victim-oriented justice and galvanize states to do the same.

Thus, in answering the second research question, the thesis argued that a re-interpretation of the principle of complementarity and the creation of an independent, inclusive ICC complementarity body are crucial to ensuring that victims’ needs, and interests are adequately considered and accommodated throughout all stages of proceedings.

The thesis’ original contribution is twofold; it outlines a reinterpretative framework for the introduction of victims’ needs and interests into admissibility determinations by the ICC. It is the first study to propose a design for an inclusive, neutral, and independent ICC complementarity division based on the existing Rome Statute regime.

The thesis also contributes to the discussions of ways in which the ICC’s relationship with African states and the African Union can be improved in the interests of victims, and the role this can play in bringing the Rome Statute closer to becoming a universal treaty.

Dr. Miracle Chinwenmeri Uche is now employed as a Lecturer at the University of Exeter. She is currently working towards publishing a monograph and journal articles from her thesis to apply her proposals to ongoing situations and cases before the ICC. She intends to further investigate the potential impact of a new and improved complementarity mechanism on victims, the ICC’s work, and workload.

Hijab Law in Iran Over the Decades: the Continuing Battle for Reform

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By Dr. Sahar Maranlou, Essex Law School

Protests have quickly spread across Iran calling for a change in the law after the death of a 22-year-old woman, Mahsa Amini, in the custody of the morality police.

The young woman was accused of violating rules on wearing hijab in public. The term hijab is an Arabic word meaning cover. However, it has been used to refer to different types of covering since 1970, from a long-sleeved coat, pants and scarf to the Islamic government’s preferred form of dress, chador, which is a loose-fitting black cloth covering the entire body.

Two quite different forms of law, from opposite ideologies, have been used to try to control women and the covering of their hair and body in the last 90 years.

The first attempt to use hijab as the subject of legislation was in 1936 by a new monarch, Reza Shah (1925-1941), who wanted to force women to remove the veil in public under his “unveiling” order. The shah’s vision of modernity, influenced by Turkish leader Mustafa Kemal Ataturk, included changing what Iranian women wore.

From 1941 to 1979 there was no law that instructed women what to wear, but many women still wore headscarves either as a statement against the monarchy or because their choices were restricted by patriarchal values such as namus (honour) and the strict control of male members of the family.

The 1979 Islamic revolution introduced the idea of hijab law. On March 8 1979, thousands of Iranian women marched in the street, protesting the idea of imposing hijab with slogans such as “freedom of choice in clothes”. Wearing hijab became obligatory for all Iranian women from April 1983. Since then, all women have been legally obliged to wear hijab in public, even non-Muslims and foreigners visiting Iran.

Over the years, the Islamic government has introduced even more legal measures and social restrictions to enforce mandatory hijab laws. Criminal punishment for those violating the law was introduced in the 1990s and ranged from imprisonment to fines.

However, there was a different shift in policing the way women in Tehran dressed, starting in January 2018. According to this new decree, women who did not observe the Islamic dress code no longer faced fines or imprisonment but rather had to attend Islam educational classes. “Women will no longer be taken to detention centres, nor will judicial cases be filed against them,” said local media reports citing Tehran police chief General Hossein Rahimi.

In such cases the morality police, Gasht-e Ershad, usually escort women to a police van and then to a class. The women are then required to sign a form saying they will not commit the “bad hijabi” offence again, and forced to take part in police-organised “guidance” to learn how they should observe Islamic values. This new order only applies in the capital Tehran – but even there, women who broke the dress code repeatedly could still be subject to legal action.

Beyond the discriminatory aspects of the mandatory dress code, one important legal issue is that the crime of “bad hijabi” or “improper hijab” is not defined by the law. Because the law is very loosely drawn, enforcers such as the morality police can choose to interpret it differently and crack down on women in various ways.

Path to law reform

Iran’s existing laws and legal practices draw from different sources, ranging from constitutional law, legislation and government bylaws to customs and Islamic principles.

Article 146 of the constitution binds the judge who “endeavours to judge each case on the basis of the written law. In case of the absence of any such law, s/he has to deliver his judgment on the basis of authoritative Islamic sources”.

The way Iranian women dress differs across different parts of the country and according to cultures, socioeconomic backgrounds, political views and religious beliefs. The mandatory hijab law is not only about taking away women’s control of their bodies in public. It affects every aspect of everyday life in Iran. For example, it forces the segregation of the sexes and promotes censorship (women are not allowed to appear without hijab on TV or in movies).

During the last few decades, Iranian women’s groups have fought to change this law. Every day, they have fought the state’s notion of “proper dress” by choosing what they wear, their fashion, their make-up, the way they walk out of their houses. In every step they take in public, they have challenged the discriminatory law that can stop and tell them that their personal choices are “improper”. In doing so, they put themselves at risk of criminal punishment ranging from imprisonment to fines.

Even though compulsory hijab has been instituted, criminalised and promoted as the main Islamic state gender policy, women’s efforts to negotiate their rights have been brave and remarkable. This continuing quest for justice, gender equality and freedom of choice has been embodied in the “women, life, freedom” slogan.

In these protests, both in the streets and on social media, Iranian women (and men) are calling for the obligatory hijab law to be abolished. Surveys suggest public opinion is widely behind a change in the law. Opposition has grown over the last few weeks, driven by social media and hashtag activism. There is hope that public demands to reform the obligatory dress code in Iran will create change.

This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence. View the original article here.

International Guidelines Help Promote and Protect Human Rights in Phillippines

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The United Nations (UN) has recommended international guidelines developed through a partnership between Julie Hannah, at Essex Law School, and the United Nations Development Programme should be used in the Philippines to improve and protect human rights.

The Office of the High Commissioner for Human Rights (OHCHR) has recommended the International Guidelines on Human Rights and Drug Policy form part of the UN joint action plan to improve the human rights situation in the Philippines.

Julie Hannah, who is the Director of the International Centre on Human Rights and Drug Policy based at the Human Rights Centre, said:

“We are delighted to see the Guidelines form one of the United Nation’s key recommendations to the government of the Phillippines to advance more humane and just responses to drugs in the country. Vigilance and accountability will continue to be critical to ensure the Guidelines are utilised in a comprehensive system of reforms necessary to support justice and healing for the communities so deeply affected by the punitive and violent drug control efforts of recent years. It is an honour to play a very minor role in supporting the tremendous advocates at the Commission on Human Rights as well as civil society colleagues and friends in the country.”

Improving human rights in the Philippines

This recent UN report examines progress made on the implementation of the United Nations Joint Programme on Human Rights (UNJP), agreed by the Government of the Philippines and the UN on 22 July 2021.

This three-year UN joint programme was developed to implement Human Rights Council Resolution 45/33 which outlined specific areas, including drug control, for capacity-building and technical cooperation for the promotion and protection of human rights in the Philippines.

The OHCHR’s recommendation that the new Philippines administration ‘revise legislation and policies in line with a human rights-based approach and the International Guidelines on Human Rights and Drug Policy’ followed a national consultation convened in 2021.

This consultation involved the Philippines Commission on Human Rights, the OHCHR and national stakeholders to review the current efforts on drug policy reform in the Philippines in light of the International Guidelines on Human Rights and Drug Policy. This was subsequently followed by meetings organised by the UNJP in April this year with government, health officials and academia to propose a draft roadmap to transition the national drug policy framework towards a public health and human-rights centred system to enable voluntary community-based treatment and rehabilitation for drugs.

More about the International Guidelines on Human Rights and Drug Policy

The International Guidelines on Human Rights and Drug Policy are the result of a multi-year collaborative effort between academics, UN entities and civil society addressing Health, Development and Criminal Justice.

They were developed by the International Centre on Human Rights and Drug Policy and the United Nations Development Programme in collaboration with the GPDPD, GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development and the Swiss Federal Department of Foreign Affairs.

This piece was first published on the University’s news web pages and is reproduced on the ELR Blog with permission and thanks.

The House of Lords Committee Inquiry into Migration Partnership Between UK and Rwanda: Essex Law School Academics’ Written Evidence Cited in the Committee’s Final Report

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On 10 June 2022, the House of Lords International Agreements Committee, chaired by Baroness Hayter, launched an inquiry into the Memorandum of Understanding (MoU) between the UK government and the government of the Republic of Rwanda for the provision of an Asylum Partnership Arrangement. 

The UK-Rwanda MoU was published by the Government on 14 April 2022. It is a political agreement under which anyone who is deemed to have arrived illegally in the UK since 1 January 2022 may be relocated to Rwanda. Although their claim for asylum in the UK would not be considered, they would be able to claim asylum in Rwanda. However, concerns were raised by academics, legal practitioners, third-party stakeholders and activists in relation to the choice of an MoU as a tool for implementing the arrangement.

The UK-Rwanda MoU is an important agreement, which may have far-reaching consequences for individuals and their rights. Unlike formal international agreements (treaties) that are subject to formal parliamentary scrutiny arrangements under the Constitutional Reform and Governance Act 2010, an MoU is not a treaty. Rather, it is a political arrangement between the UK and Rwanda, which is not designed to be binding in international law.

On 18 October 2022, the Lords Select Committee published its 7th Report of Session 2022–23 on the UK-Rwanda asylum agreement, citing written evidence submitted by Professor Theodore Konstadinides and Dr Anastasia Karatzia of the Essex Law School (para. 32).

Prof. Konstadinides and Dr. Karatzia questioned, in particular, whether an MoU is an appropriate vehicle for the relocation of asylum seekers deemed to have arrived illegally in the UK, “especially given: (a) the implications it has for individual rights, and (b) the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection which give rise to legitimate expectations as to the other party’s conduct.” They argue that such commitments would be better protected by a formal treaty.

In its final report, the Lords Select Committee criticised the UK government for having avoided any meaningful parliamentary scrutiny. It emphasised that, during the course of its inquiry, it “routinely heard” from witnesses that the UK-Rwanda MoU was inconsistent with the UK’s obligations under international law. However, the Committee refrained from offering any conclusions on the compatibility of the MoU with the UK’s international obligations, given the ongoing proceedings before the High Court concerning proposed deportations under the controversial agreement.

The Committee received 19 written submissions from academics, NGOs and lawyers, as well as a submission from the UNHCR, the United Nations Refugee Agency. The written evidence can be accessed here.

Examining the Transformational Power of Environmental Law

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By Professor Karen Hulme, Essex Law School

I wanted to share some highlights of last week’s IUCN Third International Environmental Law Conference in Oslo. The title of the four-day conference was ‘The Transformative Power of Law: Addressing Global Environmental Challenges’.

The backdrop of the conference was not lost on the 400+ participants (with more joining online), with the ongoing destruction being inflicted on Ukraine, devastating hurricanes in central and northern America, recent unprecedented heatwaves in Europe and massive floods in Pakistan. Thus, we heard about the importance of the rule of environmental law in the face of such unprecedented and monumental threats to human and environmental security – including the triple threat of climate change, the fastest rate of biodiversity loss on record, and escalating global pollution levels.

Yet, there was also time to celebrate what is, indeed, a monumental anniversary year in environmental circles, with the recently celebrated 50th anniversary of the 1972 Stockholm Declaration on the Human Environment, and its successor landmark instruments (1982 World Charter for Nature, 1992 Rio Earth Summit, 2002 Johannesburg World Summit on Sustainable Development) plus anniversaries of the three 1992 treaties on Climate Change, Biological Diversity and Desertification; and the 1982 Law of the Sea Convention. Finally, in my own area, it is also 45 years since the adoption of the 1977 Additional Protocols to the Geneva Conventions which included provisions for the first time on the protection of the environment in armed conflict. 

One of the best Plenary sessions in my opinion was that composed of the Supreme Court Justices from around the world. They were tasked with answering the conference’s themed question in relation to the ‘transformative power’ of the judiciary. We all know that members of the judiciary have a very difficult job to do at times, and their bravery in the face of Government repression often draws little attention or goes largely unnoticed. While several justices argued that their role on the bench was a rather restrained one, due to their own particular legal systems, others demonstrated a more creative, transformational approach to their role in interpreting the law. Often the need for such creativity stems from Government inaction on existing promises. Fewer are more legendary than WCEL’s former Chair, Dr. Parvez Hassan, who in 1994 argued the landmark public interest litigation case of Shehla Zia vs. WAPDA in the Pakistan Supreme Court, citing similar rulings in the Indian Supreme Court, to expand the human right to life to also include the right to a healthy environment.

Among the many excellent panellist contributions though were the words of Dr. Emmanuel Ugirashebuja, Minister of Justice and Attorney General of the Republic of Rwanda and former President of the East African Court of Justice. He spoke of the wider ripple effects that just initiating a legal case can create. While in some situations, he said, simply the commencement of a legal action might force the Government or other public actor to drop a planned environmentally-damaging project, or at least to mitigate its potential environmental impacts. Yet, Dr. Ugirashebuja also said that such litigation may also give the judges a vital opportunity they can then use to advance legal interpretations to better protect the environment in the future.

The final day also saw an interesting panel covering a wide range of new and emerging norms of international environmental law. Dr. Nick Bryner reminded us that since Covid, many states had rolled back on their environmental promises and reduced their mitigation efforts, arguing that other emergencies now needed to take precedence. Note the timely World Bank Report on just this topic in relation to escalating poverty levels. But, he said, under the norm of non-regression, removing environmental protections should only be done where the science has changed, thus where such measures are no longer scientifically necessary – not due to political expediency. Clearly, with the triple planetary threats facing the planet, now is also not the time to be regressing on environmental protection.

Professor Nicholas Robinson suggested a principle of resilience, notably of building resilience into environmental impact assessments to ensure that planned projects are resilient to such threats as climate change. And finally, Professor Michel Prieur’s words focused on the lack of legal indicators in relation to implementation and compliance. The Sustainable Development Goals, he said, contained only indicators of a scientific or economic nature, and thus legal indicators are much needed to ensure states fulfil their legal obligations.

Prof. Hulme, Chair of the WCEL Specialist Group on Environmental Security and Conflict Law, presenting at the IUCN 3rd International Environmental Law Conference in Oslo (Oct. 2022)

There were plenty more plenary sessions as well as some 34 parallel sessions to choose from covering plastic pollution, nature-based solutions, rights of nature, wildlife crimes, BBNJ and sea-bed mining developments, energy governance, reversing the biodiversity decline, the rights of future generations, and on armed conflict and ecocide. Consequently, the discussion was very rich and varied. There were many mentions of the need to achieve the goal to be nature positive by 2030, as well as for a circular economy, including in relation to UNEA’s plastics pollution treaty currently being drafted, and the need to change consumption and production patterns to meet the biodiversity post-2020 framework due to be discussed (and hopefully adopted) at December’s CBD COP 15.

With July’s adoption by the General Assembly of a resolution recognising the right to a clean, healthy and sustainable environment, Professor David Boyd, the UN Special Rapporteur on the right to a healthy environment advocated the need for the right now to be enshrined in all legal instruments, such as the new plastics treaty, the Post-2020 Biodiversity Framework and in a Protocol to the European Convention on Human Rights, amongst others.

The IUCN World Commission on Environmental Law (WCEL) website will showcase many of these presentations shortly, and for environmental lawyers please note that the WCEL is the legal branch of the International Union of Nature Conservation (IUCN), and you can become a member here – membership is free. There are many specialist groups of WCEL which you may like to join also, including environmental security and conflict law, climate change, biodiversity, oceans law, ethics, water and wetlands, soils, as well as the early career group, and two task forces on the plastics treaty and rights of nature.

IUCN WCEL 2022 Oslo International Environmental Law Conference

Prof. Karen Hulme has particular interests in environmental law, the laws of armed conflict and environmental rights. She is also the Chair of the WCEL Specialist Group on Environmental Security and Conflict Law.

A Study on Ignorance and Blame

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The adage ‘ignorance of the law is no excuse’ is significantly inaccurate. Ignorance and mistake of law do, under certain circumstances, exclude responsibility both in national and international criminal law.

Dr. Antonio Coco‘s recently published monograph The Defence of Mistake of Law in International Criminal Law updates the existing reviews of law and practice on the topic, aiming to go a step further: it takes the analysis of mistake of law as a starting point for systematic observations about international criminal law in general.

First, the book defines the contours of the defence of mistake of law in the general theory of criminal law, distinguishing it from cognate defences and highlighting, most notably, its connection with superior orders.

Secondly, it gives an overview of the possible approaches to the defence, offering examples from national law as terms of reference for the subsequent analysis of international criminal law.

Thirdly, it surveys the relevant law and practice of international criminal tribunals, with a focus on the International Criminal Court, and it contemplates offences for which a defence of mistake of law may potentially succeed.

Finally, the author tries to interpret what the rules on mistake of law applicable before international criminal tribunals imply about the purpose of punishing individuals and the legitimacy of such punishment.

Published by OUP

Whilst the discourse on international criminal law is more and more concerned with global politics, The Defence of Mistake of Law in International Criminal Law brings back the focus on the appropriateness of imposing a guilty verdict on the individual defendant, a human being constituting the basic unit of each society.

Rethinking International Law from Amazonian Onto-epistemologies: the Kukama People and the Amazonian Waterway Project

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Cristina Blanco, PhD candidate at the School of Law, University of Essex, was awarded the PhD Fieldwork Grant 2021-22 by the Socio-Legal Studies Association (SLSA). Cristina’s research focuses on the interactions between Amazonian onto-epistemologies, international law (IL) and human rights in the context of an investment project.

In the Amazonian rivers, water flow varies significantly with the seasons. During the dry season, low water levels hinder the navigation of large vessels. Although the peoples inhabiting the Amazon rainforest have travelled and traded using these rivers over centuries, the fluctuating navigability prevents uninterrupted large-scale transport. This is the main reason why the Peruvian state is promoting the “Amazonian Waterway”, an infrastructure project that consists of removing sediments from the bottom of the main Amazonian rivers.

The Amazonian Waterway is far from being an isolated project. It rather reflects the neoliberal developmental paradigm favoured by IL (Escobar 2011, Pahuja 2011, Eslava 2019). In addition to generating serious socio-environmental impacts, the project hides a profound conflict of ways of understanding the world.

The Amazonian indigenous peoples conceive the territory as a space inhabited by human and non-human entities, a conception that challenges the very definition of what we call “nature”. The sharp distinction between humans and non-humans that governs the Western world and underlies modern (international) law is not necessarily present in Amazonian cosmologies (Viveiros de Castro 2004, De la Cadena 2010, Descola 2013).

For the Kukama-Kukamiria people, for instance, the territory is inhabited by different “categories of people” living in a “plurality of worlds” (Tello 2014). The river is an (aquatic) world in itself, inhabited by beings endowed with their own subjectivity and intentionality (Rivas 2011). Therefore, thinking from the Amazon means not only standing in a geographically different place but also thinking onto-epistemically different.

In this scenario, the main problem the research seeks to explore is that IL does not take this onto-epistemic diversity seriously. Instead, it frames the issue as a cultural question of relevance to indigenous collective rights. While such rights play an indispensable role in protecting indigenous worldviews, they are insufficient to prevent their elimination.

This, in turn, has important implications in areas as critical as the Amazon. Trying to make sense of IL from the Amazon, this case study provides the opportunity to explore how to move from the impact of IL in the Amazon (historically aimed at its internationalisation) to enable the influence of Amazonian epistemologies on IL. This exercise of “Amazonising IL” enables us to reveal the epistemological richness of the Amazonian cosmovision and explore its potential for rethinking IL.

The research has three main methodological components. Substantively, it is a socio-legal research that takes as the unit of analysis the interactions between IL, human rights and the Amazonian worldview relevant to the case study. In analytical terms, it has an interdisciplinary approach theoretically informed by Amazonian studies and critical approaches to IL. As for the empirical component, it uses a case study method based on qualitative analysis of documentary and visual information, as well as in-depth semi-structured interviews.

The fieldwork was possible thanks to the valuable support of the SLSA.

Bibliographic references

De la Cadena, M. (2010). “Indigenous cosmopolitics in the Andes: Conceptual reflections beyond “politics”.” Cultural anthropology 25(2): 334-370. https://anthrosource.onlinelibrary.wiley.com/doi/abs/10.1111/j.1548-1360.2010.01061.x

Descola, P. (2013). Beyond nature and culture, University of Chicago Press. https://press.uchicago.edu/ucp/books/book/chicago/B/bo9826233.html

Escobar, A. (2011). Encountering development: The making and unmaking of the Third World, Princeton University Press. https://press.princeton.edu/books/paperback/9780691150451/encountering-development

Eslava, L. (2019). The Developmental State: Independence, Dependency, and the History of the South. In: The Battle for International Law: South-North Perspectives on the Decolonization Era. J. von Bernstorff and P. Dann, Oxford University Press: 71-100. https://global.oup.com/academic/product/the-battle-for-international-law-9780198849636?cc=gb&lang=en&

Pahuja, S. (2011). Decolonising international law: development, economic growth and the politics of universality, Cambridge University Press. https://www.cambridge.org/core/books/decolonising-international-law/7E8B4FB0AAECFD08355914EE41DDB5C7

Rivas Ruiz, R. (2011). Le serpent, mère de l’eau: chamanisme aquatique chez les Cocama-Cocamilla d’Amazonie péruvienne, Paris, EHESS. http://www.sudoc.abes.fr/cbs/xslt/DB=2.1//SRCH?IKT=12&TRM=160329019&COOKIE=U10178,Klecteurweb,D2.1,E192cfbd9-1f1,I250,B341720009+,SY,QDEF,A%5C9008+1,,J,H2-26,,29,,34,,39,,44,,49-50,,53-78,,80-87,NLECTEUR+PSI,R95.151.73.225,FN

Tello, L. (2014). “Ser gente en la Amazonía, fronteras de lo humano: aportes del pueblo kukama.” Amazzonia indigena e pratiche di autorappresentazione. Milano, Franco Angeli: 39-48. https://www.francoangeli.it/Ricerca/scheda_libro.aspx?Id=21593

Viveiros de Castro, E. (2004). Perspectivismo e multinaturalismo en la América indígena. Tierra adentro: territorio indígena y percepción del entorno. A. Surrallés and P. Hierro. Copenhague, IWGIA: 37-82. https://www.iwgia.org/images/publications/0331_tierra_adentro.pdf