Both posthuman theory and the rights of nature (RoN) movement have the potential to challenge the anthropocentrism of international environmental law (IEL).
Scholars have begun to document the transformative shifts that could occur through the application of posthuman legal theory to IEL, but these theories have yet to be applied to law in practice.
On the other hand, the RoN have been applied in domestic law but hardly in international law, while the question of what RoN includes and excludes remains contested.
Dr, Emily Jones, Senior Lecturer in Law at the University of Essex, brings posthuman theory and RoN together, reflecting on how posthuman legal theory can contribute to the framing of RoN, with a focus on challenging the anthropocentrism of IEL.
You can attend this event either online or in-person (Durham University, Room PCL152, Moot Court). To register, please email roman.f.chuffart@durham.ac.uk.
David Frost, the UK Brexit minister, has expressed discontent with the implementation of the Northern Ireland Brexit protocol. This is the trade arrangement at the heart of controversies over trade between the EU, Great Britain and Northern Ireland. Frost has threatened to trigger an emergency brake known as article 16, or even to completely renege on the protocol. But triggering it would have wide-reaching consequences.
Since the beginning of Brexit negotiations, both the EU and UK recognised the need to avoid a hard border between Ireland and Northern Ireland. This was to preserve the 1998 Good Friday Agreement.
The Protocol on Ireland and Northern Ireland was signed precisely for this purpose. Its rules ensure a smooth movement of goods between Ireland and Northern Ireland. But it also introduces checks and controls on goods entering Northern Ireland from the rest of the UK or any other third country. This way, goods entering Northern Ireland comply with EU regulatory standards and can be exported to Ireland (part of the EU) and then to other EU countries.
The EU and UK were aware that the implementation of the protocol could lead to difficulties and problems. This is why they set up a system of joint committees (UK and EU) to discuss issues arising from the protocol and to provide an opportunity for compromise.
The protocol provides that both the EU and UK can unilaterally take “safeguard measures” if its implementation leads to durable and serious economic, societal or environmental difficulties or to diversion of trade. This safeguard is known today as article 16.
Article 16 does not specify what such safeguard measures are. In international trade, they can refer to temporary tariffs, quotas or other measures designed to avoid a country suffering serious harm. Some considerations are helpful to understand article 16 of the protocol.
First, while the EU or the UK can unilaterally take safeguard measures, the other party can respond with proportionate measures to remedy any imbalance between rights and obligations created by the safeguard. Effectively, this could lead to a trade war where the other party would also take measures, such as imposing quotas and tariffs.
In any case, it must be stressed that such safeguard measures do not include tearing up the protocol and replacing it, as has been suggested in the press. In this respect, the protocol makes it clear that the people of Northern Ireland, through a democratic vote, will decide whether the protocol should remain in force in the future.
Secondly, before taking such measures, the EU and UK must attempt to find a common solution. In this case, there is a one month waiting period, starting from the date on which either the EU or the UK advises the other that it intends to take such measures. The protocol also says that any measures taken shall be discussed every three months.
Finally, the protocol is silent on the meaning of “serious economic, societal or environmental difficulties” or “diversion of trade” – the conditions under which the UK or the EU can legitimately adopt safeguard measures. The protocol does not offer any quantitative or qualitative criteria to define these difficulties.
Why the protocol is different
Safeguard measures are not unknown in international trade, for example, within the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) regime. These may be adopted when unforeseeable developments and circumstances connected with trade liberalisation result in an increase of an imported product, causing (or risking) serious injury to domestic producers.
It would be tempting to rely on GATT/WTO case law to define “serious economic, societal or environmental difficulties” as mentioned in article 16. After all, they both refer to “safeguard measures”. However, this would be a mistake for two reasons.
First, the problems arising from the protocol are not unforeseeable, as they were widely predicted when it was signed. Secondly, unlike GATT/WTO safeguards, article 16 measures do not refer to an injury to domestic producers resulting from an increase of imports.
The reality is that the underpinning goal of the protocol is radically different from an international trade agreement, and lies in the need to preserve the Good Friday Agreement and EU regulatory standards on goods. To be legitimate, any safeguard measure taken under article 16 must take this into account.
The article 16 safeguard measures are new and therefore there are no precedents to rely on to understand how they would work. While there may be different interpretations on the appropriate conditions to take such measures, there is little doubt that they will result in tariffs and quotas.
Invoking article 16 should be done responsibly. An unjustified triggering of article 16 from the EU or UK will bear serious economic consequences, and will be detrimental in terms of international credibility.
This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence.
With a long history in international law, the concept of due diligence has recently gained traction in the cyber context, as a promising avenue to hold states accountable for harmful cyber operations originating from, or transiting through, their territory, in the absence of attribution.
Nonetheless, confusion surrounds the nature, content, and scope of due diligence. It remains unclear whether it is a general principle of international law, a self-standing obligation, or a standard of conduct, and whether there is a specific rule requiring diligent behaviour in cyberspace.
This has created an ‘all-or-nothing’ discourse: either states have agreed to a rule or principle of ‘cyber due diligence’, or no obligation to behave diligently would exist in cyberspace.
In their new article in the European Journal of International Law, Dr. Antonio Coco, Lecturer in Law at the University of Essex, and Dr. Talita de Souza Dias, Postdoctoral Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), propose to shift the debate from label to substance, asking whether states have duties to protect other states and individuals from cyber harms.
By revisiting traditional cases, as well as surveying recent state practice, the authors contend that – whether or not there is consensus on ‘cyber due diligence’ – a patchwork of different protective obligations already applies, by default, in cyberspace.
At their core is a flexible standard of diligent behaviour requiring states to take reasonable steps to prevent, halt and/or redress a range of online harms.
A copy of the authors’ article can be accessed here.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted reuse, distribution, and reproduction in any medium provided the original work is properly cited.
Article full citation: Antonio Coco, Talita de Souza Dias, ‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law, European Journal of International Law, Volume 32, Issue 3, August 2021, Pages 771–806, https://doi.org/10.1093/ejil/chab056.
Ahmad al-Faqi al-Mahdi (Mr. Al Mahdi) was brought to the International Criminal Court to stand trial for his involvement in the destruction of several historical and religious sites in Timbuktu (Mali) during an armed conflict in 2012. This was the first time in the history of international criminal justice that an individual was prosecuted for the destruction of cultural heritage alone.
Following his guilty plea and conviction in 2016, the case moved on to the reparations phase where the focus was that of redressing the harm caused to victims. Therein, the unprecedented nature of the Al Mahdi case led to an equally unprecedented question: who are the victims of cultural heritage destruction?
Drawing upon her personal involvement in the case as a Court-appointed expert, Dr. Marina Lostal, Senior Lecturer at the University of Essex, has published an article explaining how this question was resolved and the practical challenges it posed during the implementation phase.
The challenges encountered are labeled as ‘monumental’ because they had one thing in common: the amount of theoretical thinking and reflection that they deserved was inversely proportionate to the urgency with which they had to be addressed and the precedent they would establish. To surmount this, drawing from the author’s background, the Trust Fund for Victims turned to academia and consulted with scholars.
The article focuses on three of such challenges:
(i) whether ‘unborn children’ should be included in the pool of victims given that cultural heritage is meant to be preserved for the benefit of future generations;
(ii) what place women ought to occupy in the implementation of reparations, despite the customary practices of side-lining them; and
(iii) the decision of whether to memorialize events surrounding the crime.
On the latter point, the article introduces the concept of ‘restorative agency’, a working principle that was adopted in the context of memorialization measures to ensure that victims are given a platform to decide, not a decision.
Lastly, Dr. Lostal’s article provides a framework to demonstrate the level of complexity involved in the implementation of any Court-ordered reparations and reveals some of the work of the Trust Fund for Victims, one of the Court’s least comprehended creations.
Article full citation: Marina Lostal, Implementing Reparations in the Al Mahdi Case: A Story of Monumental Challenges in Timbuktu, Journal of International Criminal Justice, Volume 19, Issue 4, September 2021, pp. 831–853, https://doi.org/10.1093/jicj/mqab064
States must investigate possible violations of international humanitarian law in armed conflict, and many of them use military procedures for all or part of the investigation process.
Particular tensions can arise with regard to the perception of justice in the context of military judicial procedures, especially surrounding questions of independence and impartiality.
In her new article, Claire Simmons, Senior Research Officer at the University of Essex School of Law and Human Rights Centre lays out the international legal framework which should be used to solve these challenges.
The article argues that a State must address both the specificities of military institutions and the need for a perception of justice by the affected communities in considering the proper administration of justice in armed conflict.
Here is a 30-second video summary of Claire’s article:
The article is published in a special edition of the International Review of the Red Cross on Emerging Voices of International Humanitarian Law, Policy and Action, and can be accessed herefor free.
Christmas is just around the corner. With all the hustle and bustle of academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 20 Dec. 2021), we’ll be on a short hiatus.
We hope that you can look back on a positive year with us. In 2021, we had 77 posts and thousands of visitors from 106 countries around the world. The ELR Blog will be back in January 2022 with more research news from our School.
We wish you and your family all the warmth this holiday season has to offer. We hope you have a wonderful Christmas and a New Year filled with peace and joy!
Both posthuman theory and the rights of nature (RoN) movement have the potential to challenge the anthropocentrism of international environmental law (IEL).
Scholars have begun to document the transformative shifts that could occur through the application of posthuman legal theory to IEL, but these theories have yet to be applied to law in practice.
On the other hand, RoN have been applied in domestic law but hardly in international law, while the question of what RoN includes and excludes remains contested.
Dr. Emily Jones, Senior Lecturer in Law at the University of Essex, published a new article in the Journal of Human Rights and the Environment which brings posthuman theory and RoN together, reflecting on how posthuman legal theory can contribute to the framing of RoN, with a focus on challenging the anthropocentrism of IEL.
The article argues, first, that the next step for posthuman legal theory will be its application to existing law.
Noting convergences between posthuman legal theory and the rights of nature (RoN), the article contends that those seeking to apply posthuman legal theory might find some interesting alliances by turning to RoN.
Second, the article argues that using posthuman theory to frame RoN could help to ensure that RoN live up to their transformative potential.
Article full citation: Jones, E. (2021). Posthuman international law and the rights of nature, Journal of Human Rights and the Environment, 12(0), 76-101. DOI: https://doi.org/10.4337/jhre.2021.00.04. A copy can be accessed through the publisher’s website here or requested through the University’s research repository here.
It is estimated that there are 1.9 billion adults and 379 million children living with overweight or obesity globally. This includes about 63% of the UK adult population and a third of children in England aged 2–15 years.
Obesity imposes a substantial burden on health services, societies and sustainable development. It is a significant risk factor for non-communicable diseases such as cardiovascular diseases, musculoskeletal disorders and some cancers.
Obesity in childhood is associated with a higher chance of obesity, premature death and disability in adulthood. Children with obesity also experience increased breathing difficulties, risk of fractures, hypertension, dental caries and insulin resistance with reduced levels of mental wellbeing. Moreover, there are large socio-economic, gender and ethnic inequalities in the prevalence of obesity.
We live in an obesogenic environment that encourages weight gain. A population-wide energy imbalance has resulted from systemic changes in the type, availability, affordability and marketing of food in recent decades together with a decline in physical activity. Increased energy intake due to greater consumption of energy-dense food or non-alcoholic beverages high in fat, saturated fat, sugar or salt (‘HFSS food’) is the main explanation for population weight gain.
The principal drivers underlying this consumption are the commercial determinants of health – defined as the strategies and approaches used by the private sector to promote products and choices that are detrimental to health – in the food chain, particularly the marketing of HFSS food. With children in particular, a substantial body of evidence shows that HFSS food advertising via broadcast and digital media negatively affects children’s food attitudes, preferences and consumption.
Given the core involvement of business actors, regulating their activities is an important part of a multi-faceted approach to reducing obesity. Nevertheless, regulation has been fiercely contested by these powerful economic operators. In the UK, some rules do regulate certain forms of HFSS food marketing (such as television and online advertising to children) and the government is considering strengthening these.
However, although sports sponsorship by HFSS food businesses (defined as a business preparing, cooking, storing, handling, distributing, supplying or selling food and whose products are primarily HFSS) is increasingly recognised as linked to HFSS food consumption, it has received little attention. This is all the more concerning in light of the recent proliferation of HFSS food businesses and HFSS products partnering with professional and amateur sports organisations. Prominent examples in the UK include McDonald’s sponsoring all national Football Associations, Coca-Cola sponsoring the Premier League, and KP Snacks sponsoring England and Wales Cricket Board’s new ‘The Hundred’ competition.
As these examples illustrate, sponsorship relationships between sporting organisations and food brands largely promote the consumption of HFSS products and associate these with elite sport. This close interrelationship between HFSS food sponsorship and sports undermines official nutrition advice and raises important questions regarding the impact on preferences and purchase requests of HFSS food, dietary behaviour and public health.
Against this background, in May 2021, a workshop was hosted to focus on the relationship between health, nutrition and the sponsorship of sport and related marketing by HFSS food businesses and to consider the implications for obesity prevention strategies in the UK and beyond.
This workshop brought together a new and diverse group of experts and participants who are engaged with the issue of sports sponsorship and dietary health. Its aims included: to stimulate collaboration; identify research gaps through an interdisciplinary lens; generate a novel research agenda; and raise the awareness and profile of the issue.
The workshop was organised by principal investigator Dr. Emma Boyland (University of Liverpool) and co-principal investigator Dr. Nikhil Gokani (University of Essex) with Professor Amandine Garde (University of Liverpool) and Dr. Matthew Philpott (Healthy Stadia). The organisers are grateful for funding from the UK Nutrition Research Partnership.
By Dr. Erin Pobjie (@EPobjie), Lecturer in Law, University of Essex
Russia’s unannounced direct-ascent anti-satellite (DA-ASAT) missile test earlier this month raises important legal and policy questions about the prohibition on the use of force in outer space. The highly destructive weapons test – which forced astronauts aboard the International Space Station to seek shelter and created a long-lasting field of space debris – underscores the need to urgently develop international standards for responsible behavior in space.
The timing of the test is provocative, as the United Nations (UN) General Assembly’s First Committee (Disarmament and International Security) passed several draft resolutions at the start of this month aimed at preventing an arms race in outer space, which are expected to be adopted at the next General Assembly session in early December. China and Russia were among only a handful of states to vote against the key draft resolution on “Reducing space threats through norms, rules and principles of responsible behaviours,” reflecting a deep rift on this issue between the major space powers.
Passing these reforms is crucial given the long-term consequences of resorting to force in space. Russia’s missile strike against its own defunct satellite, Tselina-D, created a field of space debris of nearly 1,500 trackable pieces (i.e., pieces greater than about 10 cm in diameter). Given high orbital velocities, even tiny pieces of space debris place astronauts and satellites at risk and, in the worst case, could lead to Kessler Syndrome – a cascading cloud of orbital debris – preventing access to outer space from Earth for generations.
This is not the first kinetic DA-ASAT test creating a long-lasting debris field: notoriously, China conducted such a test in 2007, blowing up its own weather satellite and creating 2,300 pieces of debris. The United States also conducted a kinetic DA-ASAT test in 2008, creating 400 pieces of debris, as did India in 2019, creating similar levels of debris. (The United States at the time justified the low-altitude strike against its malfunctioning spy satellite as necessary to prevent its re-entry into the atmosphere and the release of toxic fuel.)
The Russian defense minister, Sergei Shoigu, hailed its test as “promising” and denied that the fragments posed any threat to space activity. The United States retorted with a statement by Secretary of State Anthony Blinken: “The long-lived debris created by this dangerous and irresponsible test will now threaten satellites and other space objects that are vital to all nations’ security, economic, and scientific interests for decades to come.” The United Kingdom and France also condemned the weapons test, with the French Ministers for Europe and Foreign Affairs and for the Armed Forces labelling it “a destabilizing, irresponsible action which could cause very long-term consequences for the space environment and all space players.”
The Russian DA-ASAT test takes place against the background of ongoing and urgent efforts by the international community to prevent an arms race in outer space, known as “PAROS.” PAROS seeks to preserve outer space as a peaceful domain for the benefit of all, by preventing the weaponization of outer space, reducing threats to space systems, and avoiding escalated tensions and conflict caused by misunderstanding and miscommunication. Efforts towards PAROS began in earnest shortly after the conclusion of the last space treaty, the Moon Agreement, in 1979, with negotiations taking place in various multilateral fora, including the Conference on Disarmament, the UN Committee on the Peaceful Uses of Outer Space, and the UN General Assembly First Committee.
However, efforts to negotiate PAROS have been long stymied due to a deep divide in the international community on the best approach to ensuring space neutrality. The approach favored by Russia and China is a binding treaty, namely, the “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects” (PPWT) proposed in 2008 and revised in 2014. An alternative approach would be to adopt soft law guidelines aimed at transparency and confidence building measures (TCBMs), such as the European Union’s Draft International Code of Conduct for Outer Space Activities. Key substantive issues at stake include effective verifiability, legal gaps in definitions and framing of rules which could be exploited by adversaries (for example, Russia’s DA-ASAT test would not violate the Russia-China draft treaty, which does not ban ground-based weapons), and the desire for flexibility.
A breakthrough finally was reached on Nov. 1 this year, when the UN General Assembly First Committee adopted a UK-proposed draft resolution to establish an Open-Ended Working Group (OEWG) to identify threatening and irresponsible space behaviors. This resolution is likely to be approved by the UN General Assembly next month, given the voting patterns in the First Committee, in which 163 States voted in favor, with nine abstaining and only eight against (including China and Russia). The OEWG will meet in 2022 and 2023 to:
(a) Take stock of the existing international legal and other normative frameworks concerning threats arising from State behaviors with respect to outer space;
(b) Consider current and future threats by States to space systems, and actions, activities and omissions that could be considered irresponsible; [and]
(c) Make recommendations on possible norms, rules and principles of responsible behaviours relating to threats by States to space systems, including, as appropriate, how they would contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space.
In parallel with these multilateral initiatives, private efforts to codify the applicability of international law to military uses of outer space such as the Manual on the International Law Applicable to Military Uses of Outer Space (MILAMOS) and the Woomera Manual are also underway. In the face of relatively slow progress in confronting these urgent threats through UN channels, the Outer Space Institute (a global network of space experts) recently launched an International Open Letter on Kinetic Anti-Satellite Testing that has already gathered hundreds of prominent signatories, calling for a new international treaty banning kinetic DA-ASAT weapons testing of the type we have just witnessed by Russia. (The letter is open for further signatures here.)
Needless to say, there is already an international legal framework that applies to military activities in outer space, including the Outer Space Treaty, the UN Charter (especially its article 2(4) prohibiting the use of force between States), international humanitarian law, and international human rights law. But there are major areas of ambiguity that will need to be addressed, including the controversial questions of what counts as a “space weapon” and “use of force” in outer space. The unique environment in outer space gives rise to special challenges of identifying prohibited “uses of force,” including issues of attribution, dual-use objects of a military and civilian nature, difficulties with identifying hostile intent (for instance, when a satellite conducts rendezvous and proximity operations), and whether attacks with temporary and reversible effects (such as dazzling satellites through directed energy attacks, i.e., temporarily blinding an imaging satellite by using a laser to interfere with its sensor) would meet the threshold of prohibited force under jus ad bellum. Of particular relevance to Russia’s weapons test, a DA-ASAT strike against a state’s own satellite could in certain circumstances fall within the scope of prohibited force under article 2(4) of the UN Charter, since the space debris generated could cause foreseeable damage to another State’s space object. Yet none of the international efforts to define “use of force” in outer space have achieved consensus so far. And importantly, under current international law, kinetic DA-ASAT tests are not explicitly banned.
The use of force in space would also have significant non-military implications. Critical civilian infrastructure increasingly relies on space systems, including infrastructure essential for food production, health care, disaster relief, transport, communication, energy and trade, and the global navigation satellite systems such as GPS, which themselves underpin global communication networks, banking and financial markets, and energy grids. Disabling, damaging, or destroying such satellites, including through missile attacks, could have “wide-reaching consequences for civilians on earth.”
Russia’s missile test and the long-lasting space debris field it created should give policymakers increased impetus to clarify the international legal rules and norms applicable to military uses of outer space in order to prevent conflict and preserve this domain for peaceful purposes.
This piece was first published on Just Security and is reproduced on the ELR Blog with permission and thanks. The original post can be accessed here.
Dr. Birsha Ohdedar, Lecturer at the School of Law & Human Rights Centre of the University of Essex, recently spoke at a special side event during COP26, hosted by global law firm Hausfeld, the British Institute of International and Comparative Law (BIICL) and the University of Glasgow on ‘Mobilising the Rule of Law in Climate Change’.
Birsha spoke alongside Dr. David R. Boyd (UN Special Rapporteur on Human Rights and the Environment), Prof. Michael Gerrard (Columbia Law School), Prof. Christina Voigt (the University of Oslo and Chair of the IUCN World Commission on Environmental Law, Co-chair of the Paris Agreement´s Compliance and Implementation Committee). The panel was chaired by Ingrid Gubbay (Hausfeld). The event also included keynotes from Mary Robinson (former President of Ireland) and Vanessa Nakate (Climate Justice advocate)
The panel addressed the issue of climate litigation. The role of litigation has been a rapidly emerging area in recent years. The Paris Agreement, signed in 2015, catalysed thousands of cases around the globe and has become a way to hold governments and corporations to account.
Birsha’s presentation discussed the role of the judiciary in South Asia – its procedural and substantive innovations that have led to environmental rights-based public interest litigation since the 1980s. These innovations hold much promise in addressing the climate crisis.
However, as Birsha explains there are wider political-economy questions of how the courts deal with climate issues that may create obstacles. For instance, the deference to the executive on large economic projects (which often involve further climate harm), issues with enforcement of decisions, the types of environmental claims it favours, and how the judiciary deals with trade-offs between rights, justice and climate action.
In relation to the last point, Birsha argues that we may see an increase in litigation around ‘green’ projects, which negatively impact people’s rights, for instance, dispossession of land for solar energy, and for forest conservation. Thus, we need to work with lawyers and judges to better understand climate issues under a justice and rights framework, that doesn’t see ‘climate action’ further marginalising the already marginalised.
Essex Law Research Blog 