The Return of Not-Quite “Phantom Experts”?
On Monday, 2 December 2024, the much anticipated hearing began in the Obligations of States in respect of Climate Change advisory proceedings before the International Court of Justice. Less than a week before the start of the hearing, the Court issued a brief and unusual press release about a meeting that it held with scientists from the Intergovernmental Panel on Climate Change (IPCC). The Court’s decision to meet privately with the scientists raises questions about the Court’s procedures and its approach to evidence. Above all, it is unclear why the Court decided to consult with the IPCC scientists in a closed meeting rather than eliciting testimony from these individuals as part of the formal, public hearing.
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Nicaragua Comes Up Empty
On 30 April 2024, the International Court of Justice (ICJ) rejected a request by Nicaragua for the indication of provisional measures in connection with claims relating to Germany’s support for Israel in the ongoing Gaza conflict. In a terse, sparsely-reasoned decision, the Court decided 15-1 that the circumstances were ‘not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures’. While this outcome was not necessarily surprising to those who had followed the proceedings, the Court’s approach—in which it declined to address the usual requirements for the indication of provisional measures—was unusual.
Continue reading >>Desperate Times, Desperate (Provisional) Measures
On 12 February 2024, South Africa requested the International Court of Justice (ICJ) to consider exercising its power under Article 75(1) of the Rules of Court to indicate provisional measures proprio motu against Israel. This is an extraordinary request by South Africa, coming less than three weeks after the Court indicated provisional measures against Israel on 26 January 2023. It is also very rare for the Court to act proprio motu, whether prompted by a state’s request or otherwise. South Africa’s latest request is a response to Israeli Prime Minister Benjamin Netanyahu’s statement on 9 February that Israel is preparing a ground invasion of Rafah in the south of Gaza. How will the ICJ respond to South Africa’s request? In this regard, the method by which South Africa seeks the Court’s intervention merits attention.
Continue reading >>Testing the Limits of Deliberative Constitutionalism
On 14th December 2023, a parliamentary committee in Ireland issued a report recommending a referendum on inserting environmental rights, including rights of nature, into the Irish Constitution. The origin of those recommendations was the prior Citizens’ Assembly on Biodiversity Loss, which was formally linked to the committee. These events are another important chapter in the unfolding story of deliberative constitutionalism, with Ireland often cited as a leading example. The fate of the constitutional reforms proposed by the Assembly and the committee on environmental rights will provide important insights into: 1) when deliberative recommendations can gain the necessary political support for implementation; 2) whether institutional design can improve the likelihood of political support for citizen-led constitutional reform.
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An Interactive Relationship
In reflections on fifty years of membership, the employment of women is often identified as a tangible example of how membership changed Ireland. Concretely, in the years immediately following accession, the state was required to enact legislation on equal pay and equal treatment for women and men in employment. This narrative tends to place emphasis on EU law as a cause of law reform in Ireland. 50 years on, both Irish and EU equality law have expanded significantly.
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Anti-Terror Legislation and Property Rights in Egypt
In January 2023, the Egyptian cabinet introduced a new bill for parliamentary discussion proposing the establishment of a new body to manage seized funds and assets confiscated by the state, including the seized assets of individuals and organizations legally designated as terrorists. In the midst of a severe economic crisis, the bill allows the transfer of confiscated funds and assets from the public treasury to a new entity that would have the mandate to take any form of disposition regarding these assets. The Egyptian sheds the light on the problematic “preventive” nature of counter-terrorism regulations, which vanishes criminal law safeguards and rule of law standards.
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Trojan Horses and Constitutional Identity
In Costello v Ireland the Irish Supreme Court upheld a constitutional challenge by a Green Party MP to the Government’s proposed ratification of the CETA. By a majority of 4:3, the Court held that ratification would breach Irish juridical sovereignty. Beyond CETA, the greater significance of Costello may lie in its endorsement of constitutional identity as a doctrinal device that controls Ireland’s domestic legal engagement with its international law obligations. The new status accorded to constitutional identity, however, may provide future Irish courts with the doctrinal tools to recalibrate the relationship between the Irish and EU legal orders.
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Property, Proportionality, and Marginality
On 31 January 2022, the Irish Supreme Court delivered a landmark judgment that collapsed, at least in respect of remedies, a previously rigidly-drawn distinction between the private law rights and the public law obligations of housing authorities. The judgment breaks important new ground in emphasising the underprivileged and marginalised status of the Travelling community, and furthermore, in identifying that status as a factor that could weigh against the granting of an injunctive remedy.
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