Emanuele Sommario
Scuola Superiore Sant'Anna, DIRPOLIS, Faculty Member
Armed conflicts, terrorist campaigns, natural disasters are all phenomena capable of seriously jeopardizing the security of any State. In such predicaments, Governments usually adopt emergency measures that often entail extraordinary... more
Armed conflicts, terrorist campaigns, natural disasters are all phenomena capable of seriously jeopardizing the security of any State. In such predicaments, Governments usually adopt emergency measures that often entail extraordinary restrictions on basic human rights. This book looks at the practice of States that have decided to suspend international human rights treaties in order to introduce measures aimed at tackling or limit the effects of major emergencies. By scrutinizing the case law of European, American and UN treaty monitoring bodies, our analysis intends to identify the type of situations in which a derogation from human rights treaties is truly necessary, and the legal framework within which States are required to act when they introduce exceptional limitations on the enjoyment of human rights.
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This handbook offers a comprehensive assessment of the main legal issues and challenges concerning the application of International Human Rights Law (IHRL) in disaster situations, and the role of this body of law in shaping the... more
This handbook offers a comprehensive assessment of the main legal issues and challenges concerning the application of International Human Rights Law (IHRL) in disaster situations, and the role of this body of law in shaping the obligations of states and other actors involved in the prevention, preparedness and response to natural and human-made disasters.
Disasters are the consequences of events triggered by natural or human-made hazards that seriously affect the social and economic development of a society and usually overwhelm the response capacity of national actors. Traditionally, such events have been seen as situations that create challenges and problems mainly of a humanitarian nature. However, in recent years it has come to be recognized, that human rights protection needs to be provided also in these contexts, and that relief assistance activities represent but one of the means that states have at their disposal to absolve their international obligations to respect, protect and fulfill human rights. Significantly, over the past few years many treaty monitoring bodies and other human rights protection mechanisms (UN special rapporteurs, Universal Periodic Review, International Courts etc.) have focused their attention on disaster-related issues, highlighting the central role of human rights in this domain. In addition, in 2016 the International Law Commission adopted the final version of its "Draft articles on the protection of persons in the event of disasters", and a plethora of soft law instruments concerning the rights of disaster victims have been adopted at global and regional level. There is, thus, abundant material that deserves a careful survey.
The handbook looks at all the different phases of the so-called 'disaster management' cycle, which for the purpose of our research will be defined as the process by which governments, international organisations and civil society plan for and reduce the impact of disasters, react during and immediately following a disaster, and take steps to recover after a disaster has occurred. It is now widely recognized that appropriate actions at all points in the cycle lead to greater preparedness, better warnings and reduced vulnerability, and that a human rights-friendly approach is capable of mitigating the effects of disasters on people, property, and infrastructure. It is in devising and implementing these policies that international human rights law – as interpreted by international bodies – should play a role to ensure that human rights considerations are given adequate weight in the process.
The handbook is divided in four parts, preceded by a foreword by the ILC Rapporteur Edoardo Valencia Ospina. Part I sets the stage for the other contributions, as it explains the topicality of the subject, offer a working definition of the notion of "disaster", and describe how the international rules at stake may interact with other principles and bodies of international law, such as the principle of State sovereignty and international humanitarian law. Part II will then focus on the role and application of HRL in disaster settings. In particular, it looks at the alleged existence of a right to humanitarian assistance, but also explain how HRL can inform the work of humanitarian operators. Other chapters will consider the role of States and non- State actors in reducing the risk of disasters but also in limiting the enjoyment of certain rights to respond more effectively. Part III then assesses how certain rights or categories of rights might become relevant in disaster scenarios. Specific attention is devoted to those sets of guarantees which assume particular importance in such situations, and the peculiar challenges and problems posed by their implementation will be thoroughly analyzed. Finally, Part IV looks at groups of persons who: a) might be particularly vulnerable in disaster-stricken areas, or b) have been displaced as a consequence of the disaster.
This book will be of much interest to students of humanitarianism, international law, disaster management and international relations in general.
Disasters are the consequences of events triggered by natural or human-made hazards that seriously affect the social and economic development of a society and usually overwhelm the response capacity of national actors. Traditionally, such events have been seen as situations that create challenges and problems mainly of a humanitarian nature. However, in recent years it has come to be recognized, that human rights protection needs to be provided also in these contexts, and that relief assistance activities represent but one of the means that states have at their disposal to absolve their international obligations to respect, protect and fulfill human rights. Significantly, over the past few years many treaty monitoring bodies and other human rights protection mechanisms (UN special rapporteurs, Universal Periodic Review, International Courts etc.) have focused their attention on disaster-related issues, highlighting the central role of human rights in this domain. In addition, in 2016 the International Law Commission adopted the final version of its "Draft articles on the protection of persons in the event of disasters", and a plethora of soft law instruments concerning the rights of disaster victims have been adopted at global and regional level. There is, thus, abundant material that deserves a careful survey.
The handbook looks at all the different phases of the so-called 'disaster management' cycle, which for the purpose of our research will be defined as the process by which governments, international organisations and civil society plan for and reduce the impact of disasters, react during and immediately following a disaster, and take steps to recover after a disaster has occurred. It is now widely recognized that appropriate actions at all points in the cycle lead to greater preparedness, better warnings and reduced vulnerability, and that a human rights-friendly approach is capable of mitigating the effects of disasters on people, property, and infrastructure. It is in devising and implementing these policies that international human rights law – as interpreted by international bodies – should play a role to ensure that human rights considerations are given adequate weight in the process.
The handbook is divided in four parts, preceded by a foreword by the ILC Rapporteur Edoardo Valencia Ospina. Part I sets the stage for the other contributions, as it explains the topicality of the subject, offer a working definition of the notion of "disaster", and describe how the international rules at stake may interact with other principles and bodies of international law, such as the principle of State sovereignty and international humanitarian law. Part II will then focus on the role and application of HRL in disaster settings. In particular, it looks at the alleged existence of a right to humanitarian assistance, but also explain how HRL can inform the work of humanitarian operators. Other chapters will consider the role of States and non- State actors in reducing the risk of disasters but also in limiting the enjoyment of certain rights to respond more effectively. Part III then assesses how certain rights or categories of rights might become relevant in disaster scenarios. Specific attention is devoted to those sets of guarantees which assume particular importance in such situations, and the peculiar challenges and problems posed by their implementation will be thoroughly analyzed. Finally, Part IV looks at groups of persons who: a) might be particularly vulnerable in disaster-stricken areas, or b) have been displaced as a consequence of the disaster.
This book will be of much interest to students of humanitarianism, international law, disaster management and international relations in general.
Research Interests:
Research Interests:
On 19 December 2018, the UN General Assembly approved Resolution 73/195 endorsing the Global Compact for Safe, Orderly and Regular Migration (Global Compact for Migration or GCM). Despite its non-binding status, the GCM has raised strong... more
On 19 December 2018, the UN General Assembly approved Resolution 73/195 endorsing the Global Compact for Safe, Orderly and Regular Migration (Global Compact for Migration or GCM). Despite its non-binding status, the GCM has raised strong expectations and attracted criticism on various grounds, much of which has been commented upon elsewhere. One of the most overlooked, yet crucially relevant, aspects is the lack of attention devoted to migrants’ exercise of their political rights. The granting of these rights is an essential tool to both promote inclusion and integration of migrants in the receiving societies and also to ease their future voluntary return to their home countries. The GCM represented a unique occasion to stress the importance of these rights in the interest of both States and the migrants themselves. A closer look at the content of the GCM highlights that, unfortunately, this important opportunity was missed.
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This section analyses certain developments relevant to disaster law that occurred within generalist and specialised United Nations (UN) bodies during the course of 2018. In particular, it will address (1) the adoption of some UN General... more
This section analyses certain developments relevant to disaster law that occurred within generalist and specialised United Nations (UN) bodies during the course of 2018. In particular, it will address (1) the adoption of some UN General Assembly (GA) Resolutions and the connected debates; and (2) the adoption of a resolution at the 2018 Plenipotentiary Conference of the International Telecommunication Union (itu), the UN’s specialized agency responsible for information and communication technologies.
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Dealing with the current flow of migrants flocking to the shores of southern European countries remains high on the international agenda. At the end of 2016, 276,957 migrants were waiting in Libya to cross the sea. Many of them were... more
Dealing with the current flow of migrants flocking to the shores of southern European countries remains high on the international agenda. At the end of 2016, 276,957 migrants were waiting in Libya to cross the sea. Many of them were subject to human rights violations and abuses such as arbitrary detention, torture, unlawful killings, sexual exploitation and even slavery (IOM, 2017). The international response has been, so far, insufficient and new ideas and practices are urgently needed. After providing an overview of the legal framework and of the efforts carried out by the relevant international and regional organizations, this article focuses on recent treaties concluded between Italy and Libya, and argues that the new bilateral agreements represent an example of how States are responding to this challenge in an attempt to strike a balance between the need to strengthen the protection of migrants’ rights and the necessity to guarantee the security of national borders.
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The paper looks at the decision adopted by the Turkish authorities to suspend the European Convention of Human Rights (ECHR) in the wake of the attempted military putsch of July 2016. Derogations from some - but not all - human rights are... more
The paper looks at the decision adopted by the Turkish authorities to suspend the European Convention of Human Rights (ECHR) in the wake of the attempted military putsch of July 2016. Derogations from some - but not all - human rights are permissible under Article 15 of the ECHR when a state party is faced with a public emergency that threatens the life of the nation. Extraordinary measures can thus be adopted to address the situation in the attempt to restore normalcy. However, substantial as well as procedural obligations must be complied with while implementing emergency measures. The note will first address whether the situation prevailing in Turkey falls within the scope of Article 15. It will then examine if the emergency measures adopted are compatible with the substantial requirements imposed by the provision. Finally, it will assess whether the decision to derogate was notified in accordance with the procedures set out in Article 15. The analysis will be based on a perusal of Article 15 as interpreted by the European Court and European Commission of Human Rights. The note concludes that, while resort to the derogation clause is probably warranted, some of the measures adopted by the Turkish authorities are difficult to justify, as they seem to go beyond what is strictly required by the exigencies of the situation.
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It is unanimously accepted that individuals affected by calamitous events continue to enjoy the protection of International Human Rights Law. However, particularly in situations of disaster, national and international legal frameworks... more
It is unanimously accepted that individuals affected by calamitous events continue to enjoy the protection of International Human Rights Law. However, particularly in situations of disaster, national and international legal frameworks envisage the possibility to restrict or suspend certain rights to safeguard common societal interests, such as public order or public health. The nature and scope of these restrictions varies depending on the prevailing situation, with more serious circumstances allowing for more severe limitations.
This chapter will look at the practice of universal and regional human rights treaty monitoring bodies, to assess how they have reviewed situations in which disaster-stricken States have made use of clauses permitting the limitation of certain rights. It will also look at the practice of States that, in similar situations, have decided do partially suspend the enjoyment of human rights treaties, through the use of derogation clauses.
The chapter will consider the different standards adopted by treaty monitoring bodies, underline differences and communalities in the legal paradigms applicable to limitations and derogations and attempt to provide some explanation as to why States use one model rather than the other.
This chapter will look at the practice of universal and regional human rights treaty monitoring bodies, to assess how they have reviewed situations in which disaster-stricken States have made use of clauses permitting the limitation of certain rights. It will also look at the practice of States that, in similar situations, have decided do partially suspend the enjoyment of human rights treaties, through the use of derogation clauses.
The chapter will consider the different standards adopted by treaty monitoring bodies, underline differences and communalities in the legal paradigms applicable to limitations and derogations and attempt to provide some explanation as to why States use one model rather than the other.
Research Interests:
This chapter stakes stock of the previous contributions in the book, and tries to highlight some trends and topics that are common to many of them. It then identifies the role of States as the main actors tasked with guaranteeing... more
This chapter stakes stock of the previous contributions in the book, and tries to highlight some trends and topics that are common to many of them. It then identifies the role of States as the main actors tasked with guaranteeing effective disaster management mechanisms, and assesses how international law is trying to shape State obligations in this area, with a view to rendering communities more resilient to disastrous events.
Research Interests:
The increase in the EU’s activities in the area of peacekeeping operations gives rise to several legal questions, in particular with respect to the possible consequences attached to the conduct of EU-sponsored troops in their area of... more
The increase in the EU’s activities in the area of peacekeeping operations gives rise to several legal questions, in particular with respect to the possible consequences attached to the conduct of EU-sponsored troops in their area of deployment. Some of these questions concern the legal responsibility under international law for the conduct of military contingents put at the disposal of an international organisation such as the EU. In recent years, both international and national courts have had to engage with the task of determining which legal entity should bear international responsibility for possible violations of international law – notably of international human rights law - committed by troops lent to international organisations. In one of these judgments, the High Administrative Court of Nordrhein-Westfalen (NRW) had to rule on the alleged responsibility of Germany for the transfer of suspected Somali pirates to Kenya, carried out within the framework of the EUNAVFOR Atalanta mission. The purpose of this contribution is to assess the reasoning of the German Court, and to evaluate the extent to which it has followed the prevalent legal rules on attribution of conduct in the framework of multilateral military operations. The analysis will be conducted in light of the work of the International Law Commission (ILC), which has recently adopted a set of Draft Articles on the Responsibility of International Organisations (DARIO ). Next, the practice of national and international courts on the matter will be reviewed. Finally, the facts put before the Higher Administrative Court of NRW will be presented, and the arguments of the Court will be discussed against the background of the relevant legal framework.
Research Interests:
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have... more
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.
Research Interests:
Research Interests:
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible... more
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected State’s international obligations under human rights law. Yet, the existence of a public emergency of significant magnitude may temporarily exonerate States from the duty to fully respect their human rights commitments, either through the operation of specific clauses that are included in the relevant treaties (so-called “derogation clauses”), or—where no such provision is present—by invoking certain justifications recognized in international law as valid excuses for the non-performance of legal obligations. This chapter intends to look at the practice of States and treaty monitoring bodies in order to ascertain what substantial and procedural requirements States must fulfill if they deem it necessary to suspend individual rights while coping with a public emergency prompted by a natural or man-made disaster. The purpose is to ascertain what features a disaster must present in order to trigger the right to derogate, to what extent human rights may be suspended, what formal steps must be undertaken by authorities which choose to derogate from human rights treaties, and which are the legal parameters under general international law with regard to the suspension of treaties which do not explicitly provide for a right to derogate.
Research Interests:
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have... more
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.
Research Interests:
Strategic climate change litigation is rising on a global scale as a tool to bridge the accountability and enforcement gap that is currently affecting climate change law. The vast majority of strategic climate cases concern mitigation,... more
Strategic climate change litigation is rising on a global scale as a tool to bridge the accountability and enforcement gap that is currently affecting climate change law. The vast majority of strategic climate cases concern mitigation, while adaptation is rarely addressed, and when it is, this is done in a rather residual and vague manner (Setzer and Higham, 2022). However, if it is true that states and corporate actors are lagging behind their emission reduction commitments, at the same time ‘at current rates of adaptation planning and implementation, the adaptation gap will continue to grow’ (IPCC, 2022). Accordingly, once strategic litigation is found to be a suitable tool to advance climate action, opportunities to litigate adaptation strategically should be further explored. The role of science in substantiating climate change litigation is very much under the spotlight when it comes to the determination of emission reduction targets, carbon budget and ‘fair shares’ in mitigation cases (BIICL and Sant’Anna, 2021). On the other hand, science does not yet provide accurate indicators of adaptation progress or lack thereof and this contributes to narrowing down opportunities for strategic litigation on adaptation (Berrang-Ford, Biesbroek et al, 2019). Against this background, this study aims to investigate the role of geosciences in fostering strategic litigation on climate change adaptation. This objective is pursued via a case study. The study builds hypothetical strategic cases concerning public authorities’ liability for flood risk reduction and investigates the potential role of geosciences in such cases. How can geosciences help determine the impacts of climate change on flood risk in a given area and the consequent exposure and vulnerability of specific communities? What does a science-based assessment of given adaptation and flood risk reduction policies and measures look like? To what extent can geosciences determine the activities that public authorities should take to reduce flood risk in a certain area? And, finally, how far can existing commitments in the area of disaster risk reduction and human rights be used in order to distill concrete obligations in terms of adaptation to climate change-induced hazards? The study aims to address these questions by means of an interdisciplinary approach based on combining legal and policy practice with sound geoscience methodology. References Joana Setzer and Catherine Higham, ‘Global trends in climate change litigation: 2022 snapshot’, (2022) Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science IPCC [Hans-O Pörtner et al. (eds)], Climate Change 2022 Impacts, Adaptation and Vulnerability. Working Group II Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policy Makers A Holzhausen, R Luporini (Eds), The Role of Science in Climate Change Litigation: International Workshop Report, (July 2021) Lea Berrang-Ford, Robbert Biesbroek, et al, Tracking global climate change adaptation among governments, Nature Climate Change 9, 440–449 (2019)
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Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible... more
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected State’s international obligations under human rights law. Yet, the existence of a public emergency of significant magnitude may temporarily exonerate States from the duty to fully respect their human rights commitments, either through the operation of specific clauses that are included in the relevant treaties (so-called “derogation clauses”), or—where no such provision is present—by invoking certain justifications recognized in international law as valid excuses for the non-performance of legal obligations. This chapter intends to look at the practice of States and treaty monitoring bodies in order to ascertain what substantial and procedural requirements States must fulfill if they deem it necessary to suspend individual rights while coping with a public emergency prompted by a natural or man-made disaster. The purpose is to ascertain what features a disaster must present in order to trigger the right to derogate, to what extent human rights may be suspended, what formal steps must be undertaken by authorities which choose to derogate from human rights treaties, and which are the legal parameters under general international law with regard to the suspension of treaties which do not explicitly provide for a right to derogate.
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The article briefly reviews the UN Human Rights Committee’s (HRC) decision in the case Teitiota v New Zealand. At stake was the applicant’s claim that New Zealand should not send him back to Kiribati, his country of origin, as the effects... more
The article briefly reviews the UN Human Rights Committee’s (HRC) decision in the case Teitiota v New Zealand. At stake was the applicant’s claim that New Zealand should not send him back to Kiribati, his country of origin, as the effects of climate change there put him at risk of being exposed to life-threatening events and indecent living conditions. Despite a disappointing outcome for the applicant, the ruling has been hailed by commentators as a 'landmark determination’. After providing a brief introduction to the facts, the article will offer some comments on certain aspects of the decision, as well as a few suggestions on how the applicant could recalibrate his litigation strategy before UN treaty monitoring bodies.
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It is unanimously accepted that individuals affected by calamitous events continue to enjoy the protection of International Human Rights Law. However, particularly in situations of disaster, national and international legal frameworks... more
It is unanimously accepted that individuals affected by calamitous events continue to enjoy the protection of International Human Rights Law. However, particularly in situations of disaster, national and international legal frameworks envisage the possibility to restrict or suspend certain rights to safeguard common societal interests, such as public order or public health. The nature and scope of these restrictions varies depending on the prevailing situation, with more serious circumstances allowing for more severe limitations. This chapter will look at the practice of universal and regional human rights treaty monitoring bodies, to assess how they have reviewed situations in which disaster-stricken States have made use of clauses permitting the limitation of certain rights. It will also look at the practice of States that, in similar situations, have decided do partially suspend the enjoyment of human rights treaties, through the use of derogation clauses. The chapter will consider the different standards adopted by treaty monitoring bodies, underline differences and communalities in the legal paradigms applicable to limitations and derogations and attempt to provide some explanation as to why States use one model rather than the other.
Research Interests:
Research Interests:
The article briefly reviews the UN Human Rights Committee’s (HRC) decision in the case Teitiota v New Zealand. At stake was the applicant’s claim that New Zealand should not send him back to Kiribati, his country of origin, as the effects... more
The article briefly reviews the UN Human Rights Committee’s (HRC) decision in the case Teitiota v New Zealand. At stake was the applicant’s claim that New Zealand should not send him back to Kiribati, his country of origin, as the effects of climate change there put him at risk of being exposed to life-threatening events and indecent living conditions. Despite a disappointing outcome for the applicant, the ruling has been hailed by commentators as a 'landmark determination’. After providing a brief introduction to the facts, the article will offer some comments on certain aspects of the decision, as well as a few suggestions on how the applicant could recalibrate his litigation strategy before UN treaty monitoring bodies.
Research Interests:
Research Interests:
Research Interests:
Research Interests:
This chapter stakes stock of the previous contributions in the book, and tries to highlight some trends and topics that are common to many of them. It then identifies the role of States as the main actors tasked with guaranteeing... more
This chapter stakes stock of the previous contributions in the book, and tries to highlight some trends and topics that are common to many of them. It then identifies the role of States as the main actors tasked with guaranteeing effective disaster management mechanisms, and assesses how international law is trying to shape State obligations in this area, with a view to rendering communities more resilient to disastrous events.
Research Interests:
Research Interests:
The increase in the EU’s activities in the area of peacekeeping operations gives rise to several legal questions, in particular with respect to the possible consequences attached to the conduct of EU-sponsored troops in their area of... more
The increase in the EU’s activities in the area of peacekeeping operations gives rise to several legal questions, in particular with respect to the possible consequences attached to the conduct of EU-sponsored troops in their area of deployment. Some of these questions concern the legal responsibility under international law for the conduct of military contingents put at the disposal of an international organisation such as the EU. In recent years, both international and national courts have had to engage with the task of determining which legal entity should bear international responsibility for possible violations of international law – notably of international human rights law - committed by troops lent to international organisations. In one of these judgments, the High Administrative Court of Nordrhein-Westfalen (NRW) had to rule on the alleged responsibility of Germany for the transfer of suspected Somali pirates to Kenya, carried out within the framework of the EUNAVFOR Atalanta mission. The purpose of this contribution is to assess the reasoning of the German Court, and to evaluate the extent to which it has followed the prevalent legal rules on attribution of conduct in the framework of multilateral military operations. The analysis will be conducted in light of the work of the International Law Commission (ILC), which has recently adopted a set of Draft Articles on the Responsibility of International Organisations (DARIO ). Next, the practice of national and international courts on the matter will be reviewed. Finally, the facts put before the Higher Administrative Court of NRW will be presented, and the arguments of the Court will be discussed against the background of the relevant legal framework.
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Natural and technological disasters have the potential to severely undermine the capacity of States to comply with their human rights obligations. Among the most vital rights of disaster victims are the rights to food and water,... more
Natural and technological disasters have the potential to severely undermine the capacity of States to comply with their human rights obligations. Among the most vital rights of disaster victims are the rights to food and water, encapsulated in the Covenant on Economic, Social and Cultural Rights. In this article, the scope of State obligations under international human rights law to secure sufficient amounts of adequate food and water in disaster settings is explored. After assessing if and to what extent the exercise of such rights can be restricted in the wake of a major disaster, the focus of the analysis shifts to the core content of State obligations, which are explored in the light of commonly accepted humanitarian standards. Lastly, the relationship between the obligation to ensure access to a minimum essential amount of food and water and the non-derogable right to life is examined.
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Dealing with the current flow of migrants flocking to the shores of southern European countries remains high on the international agenda. At the end of 2016, 276,957 migrants were waiting in Libya to cross the sea. Many of them were... more
Dealing with the current flow of migrants flocking to the shores of southern European countries remains high on the international agenda. At the end of 2016, 276,957 migrants were waiting in Libya to cross the sea. Many of them were subject to human rights violations and abuses such as arbitrary detention, torture, unlawful killings, sexual exploitation and even slavery (IOM, 2017). The international response has been, so far, insufficient and new ideas and practices are urgently needed. After providing an overview of the legal framework and of the efforts carried out by the relevant international and regional organizations, this article focuses on recent treaties concluded between Italy and Libya, and argues that the new bilateral agreements represent an example of how States are responding to this challenge in an attempt to strike a balance between the need to strengthen the protection of migrants’ rights and the necessity to guarantee the security of national borders.
Research Interests:
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have... more
Although the phenomenon of ‘foreign fighters’ is not a new one, a reported recent increase in their numbers and in the range of countries from which they originate, the groups they join, their motivations and subsequent paths have highlighted the complicated nature of this issue and raised concerns across the world. Yet the legal obligations as well as the exact level of legal protection these individuals enjoy once they join an ongoing conflict is not entirely clear. In particular, International Humanitarian Law (IHL), which aims to protect the basic rights of individuals and groups affected by armed conflicts, does not provide specific guidance on what status they might be entitled to and, consequently, on how they should be treated. The present chapter seeks to shed some light on this matter by reviewing the main IHL treaties, their commentaries, judicial decisions rendered by international tribunals and relevant scientific contributions. It will do so by looking at IHL applicable in International Armed Conflicts (IACs) and in Non-International Armed Conflicts (NIACs), as the status these two branches of IHL confer to captured fighters is rather different. Lastly, ‘foreign fighters’ will be distinguished from ‘mercenaries’, on the basis of the legal definition currently in force under the law of armed conflict.
Research Interests:
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible... more
Certain natural or technological disasters may have exceptionally severe consequences that call for the adoption of extraordinary measures. Some of these may restrict individual rights and freedoms to an extent which is not compatible with the affected State’s international obligations under human rights law. Yet, the existence of a public emergency of significant magnitude may temporarily exonerate States from the duty to fully respect their human rights commitments, either through the operation of specific clauses that are included in the relevant treaties (so-called “derogation clauses”), or—where no such provision is present—by invoking certain justifications recognized in international law as valid excuses for the non-performance of legal obligations. This chapter intends to look at the practice of States and treaty monitoring bodies in order to ascertain what substantial and procedural requirements States must fulfill if they deem it necessary to suspend individual rights while coping with a public emergency prompted by a natural or man-made disaster. The purpose is to ascertain what features a disaster must present in order to trigger the right to derogate, to what extent human rights may be suspended, what formal steps must be undertaken by authorities which choose to derogate from human rights treaties, and which are the legal parameters under general international law with regard to the suspension of treaties which do not explicitly provide for a right to derogate.
Research Interests:
Sfida all'ordine mondiale is a well-timed book. Released only a few months after the events of 11 September, the authors describe the conduct of states and other international actors in the immediate aftermath of that tragic... more
Sfida all'ordine mondiale is a well-timed book. Released only a few months after the events of 11 September, the authors describe the conduct of states and other international actors in the immediate aftermath of that tragic occurrence through the lens of international law. Pools ...