In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.
In view of the Paris Climate Conference in December 2015, where the adoption of a universal, binding climate agreement is foreseen, this note examines the respective roles of the European Union (EU) and the United States (US) in shaping the international response to climate change, and considers the prospects for the adoption and implementation of such a new climate agreement. It considers how the EU and the US have contributed to the design and implementation of the relevant international legal norms, addressing the shift in leadership from the US to the EU in the 1990s, EU activism through the Emission Trading Scheme (ETS) and ambitious emission reductions, and the renewed commitment from the Obama Administration since 2013, including US-China cooperation. This article discusses the EU and US perspectives on the adoption and implementation of a new climate agreement, focusing on its legally binding nature. The author concludes that an adequate system of monitoring and verification mechanisms at the domestic and international levels is a conditio sine qua non for any new climate agreement. A system of “checks and balances”, limiting the role of international law to one offacilitation, rather than prescription, may be the first step towards an innovative and more effective normative framework.
The Paris Agreement on Climate Change has been acclaimed as a “historic turning point”, but it has also been dismissed as “an epic failure”. This note presents some critical considerations on this Agreement, focusing on two questions: first, to what extent will the Paris Agreement be legally binding for its Parties; and second, which of two essential concerns has a higher weight when balancing “legal force” and “geographical scope”? The author concludes that, while the Paris Agreement in itself will be legally binding on its States Parties, its individual provisions provide little scope for their judicial enforcement. In order to restore the balance, which has tipped towards the geographical scope, considerable weight must now be put on the scales in the next phase of the process, so as to render the modalities of the Agreement’s transparency and facilitation mechanisms as effective as possible.