Laws

This paper covers the existing international law toolbox on peaceful settlement of disputes and its application to online conflicts. It reiterates the existing measures of diplomatic and judicial measures to address differing positions of states and non-state actors as well as their applicability for the unique online environment. Full article

The Vermont (VT) Global Warming Solutions Act (GWSA, 2020) sets greenhouse gas (GHG) emissions reduction targets at 26% below 2005 by 2025, 40% below 1990 by 2030 and 80% below 1990 by 2050 for energy-related emissions only. Vermont’s omission of GHG emissions from land conversions could result in significant costs of inaction (COI), which could hinder the state’s mitigation and adaptation plans and result in climate crisis-related risks (e.g., credit downgrade). Science-based spatio-temporal data of GHG emissions from soils because of land conversions can be integrated into the conceptual framework of “action” versus “inaction” to prevent GHG emissions. The application of soil information data and remote sensing analysis can identify the GHG emissions from land conversions, which can be expressed as “realized” social costs of “inaction”. This study demonstrates the rapid assessment of the value of regulating ecosystems services (ES) from soil organic carbon (SOC), soil inorganic carbon (SIC), and total soil carbon (TSC) stocks, based on the concept of the avoided social cost of carbon dioxide (CO₂) emissions for VT by soil order and county using remote sensing and information from the State Soil Geographic (STATSGO) and Soil Survey Geographic Database (SSURGO) databases. Classified land cover data for 2001 and 2016 were downloaded from the Multi-Resolution Land Characteristics Consortium (MRLC) website. These results provide accurate and quantitative spatio-temporal information about likely GHG emissions, which can be linked to VT’s climate action plan. A failure to considerably reduce emissions from land conversions would increase climate change costs and potential legal consequences for VT and beyond its borders. Full article

Climate change has already had a significant impact on both tangible and intangible cultural heritage globally. Climate change-induced impacts on tangible cultural heritage include historic buildings being damaged by increasing sea levels, and harm caused to coral reefs as a result of increased water temperatures to give just two examples. In the sphere of intangible cultural heritage, climate change can lead communities to abandon their environment and related customs and practices, influencing how they live, eat, work, socialize and worship. Given the spiritual connection between Indigenous Peoples and their land and nature they are disproportionately affected by climate change. This loss is inter-generational, as Indigenous practices and customs disappear when communities are forced to leave their traditional homes and lifestyles. This article seeks to assess how the international legal framework can potentially address the impact of climate change on Indigenous intangible heritage. It also review recent efforts by UNESCO to address climate change and its impacts on cultural heritage. Full article

Human mobility in the context of disasters and climate change (HMDCC) is a complex problem, which is planetary in scope and intergenerational in its impact. From the mid-seventeenth century’s little ice age to the rising sea levels due to climate change, people have been driven to move by environmental factors for a long time. Yet, an international treaty regime that addresses the protection needs of persons mobile due to environmental factors has never been created. Against this backdrop, the Global Compacts were negotiated to reflect a “sophisticated” understanding of HMDCC, and their adoption enables cooperation on a wide range of policies and laws to this effect. Examining the implementation of the Global Compacts with respect to the commitments relating to HMDCC, this article finds that States and non-State actors have cooperated to address data gaps and to incorporate mobility considerations into national frameworks on climate change and disaster management. However, States must implement all dimensions of their commitments relating to HMDCC, especially with regards to the facilitation of migration as an adaptation strategy to disasters and climate change, in order to build a comprehensive approach. Full article

‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as part of the VULNER project (Belgium and Italy), this contribution establishes a typology of the various legal and bureaucratic functions that ‘vulnerability’ has received in the EU. It also reflects on the ‘juridification’ trend at play, the implementation challenges that have emerged as a result, and how they are currently being addressed in the EU. Full article

This article provides a review of the functioning and legality of the Safe Third Country Agreement between Canada and the United States, placing it in the broader context of systemic factors that generate and exacerbate the vulnerability of protection seekers. It offers a critical evaluation of what the legal challenges against the STCA reveal about the promises and limitations of safe-country-related litigation and the future of the Agreement. Full article

Meaningful Human Control (MHC) has been a consistent key term in legal debates concerning autonomous weapon systems (AWS), but its usefulness as a policy or lawmaking tool is limited due to a lack of clarity on what the concept encompasses. This study engaged in a thorough literature study of official statements, policy papers and academic papers published between 2013–2021 to determine features common to these proposals and synthesise a workable framework of MHC. The framework identifies five core elements—awareness, weaponeering, context control, prediction and accountability—and many interlocking mechanisms which link these elements together in a causal and chronological manner corresponding to the military targeting process. Subsequently, a detailed commentary and discussion is provided on the individual differences between sources, how specific elements can be implemented in practice by military commanders, and particularly controversial points are highlighted which require specific consideration by commentators and policymakers. The framework identifies concrete and practicable ways commanders can exercise control over AWS and serves as a solid foundation for further legal analysis of commanders’ duties when employing AWS, for future policy discussions, and as a problem-solving tool to resolve important legal questions such as the ubiquitous ‘accountability gap’ conundrum. Full article

Judges are the central actors in the organization and functioning of the judicial system. Concerns about work efficiency, driven by the European Commission for the Efficiency of Justice, led countries to adopt a set of reforms in line with private sector ideals applied to the public field to better manage their financial and human resources. In the last decades, the Portuguese judicial system has undergone a reform based on New Public Management principles by adopting the new Law on the Organization of the Judiciary System (LOSJ), significantly altering judges’ duties, who beyond their traditional role of applying the law, perform the additional role of court-of-law judge-manager. The objective of this study is to explore the influence of role conflict and role ambiguity in occupational burnout among judges and to analyze the influence of calling orientation as a moderating variable, so as to present a conceptual model of role-stress management among the judiciary. Theoretically, this work contributes to the literature on role-stress management through its introduction of calling moderation, as well as to the literature on the positive influence of calling on burnout. In terms of its practical implications, the work contributes to a reconsideration of the current organizational structure of judicial work. Full article

Delaware’s (DE) Climate Action Plan lays out a pathway to reduce greenhouse gas (GHG) emissions by at least 26% by 2025 but does not consider soil-based GHG emissions from land conversions. Consequently, DE’s climate action plan fails to account for the contribution of emissions from ongoing land development economic activity to climate change. Source attribution (SA) is a special field within the science of climate change attribution, which can generate “documentary evidence” (e.g., GHG emissions inventory, etc.). The combination of remote sensing and soil information data analysis can identify the source attribution of GHG emissions from land conversions for DE. Traditional attribution science starts with climate impacts, which are then linked to source attribution of GHG emissions. The most urgent need is not only to detect climate change impacts, but also to detect and attribute sources of climate change impacts. This study used a different approach that quantified past soil GHG emissions which are then available to support impact attribution. Study results provide accurate and quantitative spatio-temporal source attribution for likely GHG emissions, which can be included in the DE’s climate action plan. Including the impact of land conversion on GHG emissions is critical to mitigating climate impacts, because without a more complete source attribution it is not possible to meet overall emission reduction goals. Furthermore, the increased climate change impacts from land conversions are in a feedback loop where climate change can increase the rates of GHG emissions as part of these conversions. This study provides a spatially explicit methodology that could be applied to attribute past, future, or potential GHG emission impacts from land conversions that can be included in DE’s GHGs inventory and climate impact assessment. Full article

For many people who have made Canada their home but have uncertain legal status and are ineligible to apply for permanent residence through other channels, the Humanitarian and Compassionate (H&C) application is the only available pathway to permanent residence and stability in Canada. Applications for permanent residence on H&C grounds have become a key component of Canada’s immigration system and yet this pathway remains under-researched. Drawing upon extensive desk research and the preliminary analysis of interview data, this article addresses this gap in the scholarship by offering a critical analysis of the H&C program. In it, we begin by discussing the specific challenges that this highly discretionary decision-making process poses for vulnerable applicants and suggest areas for improvement. We then focus on H&C applications and decisions that directly impact children and explain why a change in the Canadian application of the best interests of the child principle is required. Finally, we consider two recent trends in H&C cases: the sharp increase in the number of applications and the increasingly high rates of refusal. Throughout this analysis, we highlight the negative repercussions the current system has on the most vulnerable categories of migrants and the need to better understand these phenomena. Full article

Human trafficking in the form of labour exploitation appears to have gone under the legal radar domestically, regionally, and internationally, with ensuing grave consequences for the victims concerned. This paper critically discusses the current legal developments and interpretations of global and regional legal sources on forced labour and the challenges they face. A legal analysis is supplemented by information obtained through interviews with 14 presumed male victims of forced labour, who recently escaped a coercive work situation and were living in a safe house in Oslo (Norway). The paper will demonstrate the shortcomings of the law and its application, using the case of Norway and the affected men as an example. It examines the case law of the European Court of Human Rights using a vulnerability approach and argues that the inaction in preventing and prosecuting crimes committed towards people who are exploited for forced labour is a violation of their human rights and may be interpreted as granting impunity to their perpetrators. The situation for male victims of forced labour is particularly severe. Full article

This article analyses the (potential) role of the Global Compact for Migration and the Global Compact for Refugees in the development of EU law concerning asylum seekers who arrive at the external borders of the European Union (EU). Under the current rules, many asylum seekers are refused entry to the territory of the EU and detained while their asylum claim is examined in a border procedure. Some EU Member States even push back asylum seekers without a proper assessment of their needs for international protection. Despite widespread violations of the fundamental rights of asylum seekers at the external borders of the EU, the New Pact on Migration and Asylum presents the new integrated border procedure as an important instrument to ‘deal with mixed flows’ and make the Common European Asylum System (CEAS) work. However, the EU legislator has not substantiated the claim that border procedures will contribute to achieving the aims of the CEAS, such as the creation of a uniform, fair and efficient asylum procedure and prevention of abuse. Neither does the Pact provide a solution for pushbacks and systematic use of detention, nor does it guarantee the quality of the asylum procedure, including the identification of persons with special needs. The Pact therefore not only fails to comply with the EU’s own Better Regulation guidelines and protect the fundamental rights of asylum seekers, but it also ignores the standards of the Global Compacts. What role can the Global Compacts still play in the ongoing negotiations over the Pact? Full article

In recent times, the CJEU has started to develop its judicial response to the “rule of law crisis” in some Member States. On the one hand, this new trend has emerged also as a reaction to some national reforms concerning asylum and migration law. On the other hand, the CJEU in protecting the EU founding values has deployed its “traditional” competences attributed to it by the EU Treaties, namely the mechanisms of the preliminary ruling procedure and the infringement procedure. Against this background, this contribution aims at investigating this new CJEU’s jurisprudence through the lens of the Global Compacts on Refugees and Migration. This will lead us to reflect on how the CJEU’s caselaw could be seen as an effective tool to enhance the rule of law and protect third-country nationals, at least within the EU, and indirectly contributes to increasing compliance with some of the commitments laid down in the Global Compacts, regardless of the position taken by some recalcitrant EU Member States with respect to these documents. Full article

In June 2019, the Government of Canada implemented the Open work permit for vulnerable workers (OWP-V) policy, authorizing immigration officers to issue open work permits to migrant workers on employer-specific work permits if they demonstrate reasonable grounds to believe that they are experiencing abuse or are at risk of abuse in their workplace. Drawing on research conducted by a community organization on the impact of the policy, this article examines the policy’s potential to remedy the problematic effects of the employer-specific work permit and whether it has been implemented efficiently. Semi-structured interviews were conducted with organizations that provide direct legal and social support to migrant workers in Canada. Additionally, two datasets regarding the role of the OWP-V policy in IRCC’s employer compliance regime were analyzed. The research concludes that the OWP-V policy cannot be expected to counteract the high risk of abuse imposed on workers through the employer-specific work permit. Numerous barriers were identified that make it difficult for migrant workers to apply for the permit. The small number of OWP-V permits issued in proportion to the number of employers authorized to hire migrant workers makes it unlikely that the policy will significantly impact employers’ propensity to comply with the program conditions. Full article

This paper examines the “protective potential” of the Global Compacts on Refugees and Migrants vis à vis existing commitments to fundamental rights within the European Union (EU). The relationship between the two normative frameworks is scrutinised to establish the extent to which the two might be mutually supportive or contradictory, since this determines the Compacts’ capacity to inform the interpretation of EU fundamental rights within the Common European Asylum System (CEAS). This paper explores this protective potential through three of the Compacts’ key guiding principles: respect for human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. The Compacts’ commitments to the first two are presented as sites of coherence where the Compacts concretely express pre-existing protections within EU law and provide a blueprint for implementation in the migration sphere. However, the Compacts’ principle of non-discrimination reveals an area of friction with EU primary law. It is argued that the implementation of this principle can address the inherently discriminatory system underpinning EU law. Within the EU, rather than undermining international and national human rights obligations, the Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations applicable to migrants and refugees. Full article

Coastal and estuarine margins are considered natural resources with various functions and are covered by different management and protection tools. In Portugal, the Maritime Public Domain (MPD) aims to regulate property in maritime and coastal areas, assuming that these are public resources of the nation. Little is known, however, about how the MPD considers estuarine margins, which are also valuable, and vulnerable, environmental areas. This article analyses how the concept of MPD applies to the estuarine margins in Portugal. Moreover, as this concept has been subsequently adopted by other countries with close roots such as Angola, Brazil, and Mozambique, this paper also explores if estuaries are further considered in their legislation. For this purpose, it undertakes an analysis of legal documents establishing the MPD, focusing on the definition, types of areas where it applies, the width of the margins, ownership, and use restriction. The findings show that estuaries are considered by the MPD in Portugal and in the similar instruments of the other three countries. Nevertheless, their approaches differ, especially on the width of margins and the flexibility of the ownership regime, suggesting that the potential to protect margins has not been globally reinforced by the countries adopting MPD after Portugal. This study offers new insights on the MPD and brings to the fore a gap in the literature that deserves to be further explored in other countries with different legal traditions and deepening the analysis on the added value for the protection of estuarine margins. Full article

To allow for the effective functioning of a state, measures are necessary to limit the power of government, securing to the people certain fundamental human rights. These limitations are frequently referred to as ‘constitutionalism’. This essay explores the nature of constitutionalism found in India, and specifically as it has evolved through judicial interpretation—the process whereby judicial decisions have given meaning and content to the written constitution. In this way, the judiciary has balanced the power of government with the rights of the people. Constitutionalism is indispensable to effective governance, balancing power with right. Full article

This paper examines the role of cultural evidence submitted by anthropologists and social scientists to assist individuals seeking asylum in the United Kingdom. Expert evidence is an essential element in the way that Immigration Judges decide asylum claims. The paper begins by looking at the role of experts and the limits of scientific evidence in the legal process. I set out the context in which expert evidence features in the First-Tier Tribunal of United Kingdom’s Immigration and Asylum Chamber (IAC). I then show how Immigration Judges in the Upper Tribunal of the IAC assess expert evidence in ‘country guidance’ cases decided between 2015 and 2019. Analysis reveals that experts submit a range of different types of evidence, that judges problematically assess this evidence and that there are serious defects in the judicial process. I conclude by suggesting ways to mediate between the very different roles, perceptions and training of experts, lawyers and judges. Full article

The turbulent transition of power from the Ghani administration to the Taliban regime has not only signalled a death knell to the fundamentals of representative democracy, but it has also provided fertile ground for the large-scale exodus of refugees into neighbouring nations. In view of this, a scrutiny of the Indian state’s response to the influx of Afghan refugees is warranted. India is not a signatory to the 1951 Refugee Convention, nor to the 1967 Protocol, and, in the absence of any concrete national refugee law and policy, Afghans who are seeking refugee status are processed on a haphazard case-by-case basis. In chalking out a future course of action, this paper aims to analyse India’s response to the possible Afghan refugee inflow in the aftermath of the Taliban takeover and in light of India’s recent endorsement of the Global Compact on Refugees (GCR). Against the backdrop of the limited mandate of the UNHCR and the lack of “political will” from the successive governments, we contend that the Supreme and High Courts of India have been instrumental in construing a tentative shield of protection for persons already in the country, which is working out of a judicial form of the endorsement of the non-refoulment principle, in the absence of legislative and executive commitments, and the preferential “acts of kindness” strategy, which discriminates amongst different refugee groups as per origin or religious belief. Moreover, it is argued that the GCR has made few inroads into the overall paradigm as to how refugees are perceived in India. The research concludes that India must enact legislation on refugees for any constructive engagement beyond archaic quick-fix solutions. Full article