One of the most recent and most effective efforts of the Inter-American Court of Human Rights (Inter-American Court) to increase the level of compliance with the American Convention on Human Rights (ACHR) has been the creation of the “conventionality control” doctrine. The Inter-American Court describes this as a “mechanism for the application of International Law,” mainly “International Human Rights Law, and specifically the American Convention and its sources, including this Court’s jurisprudence.”

Judge Eduardo Ferrer Mac-Gregor presents a very clear and concise description of the main contours of the conventionality control theory articulated by the Inter-American Court of Human Rights (“Court,” “Tribunal,” or “Inter-American Court”). So, I will not repeat his masterful explanation, which states, in brief, that the conventionality control requires all State authorities, particularly judges, to apply the American Convention on Human Rights (“the Convention”) as interpreted by the Court.

A new approach

Ius Constitutionale Commune en América Latina (ICCAL) constitutes a new approach to constitutionalism in the region. It has transformative aims and draws its energy from the perception of unacceptable conditions of a systematic nature. Like many legal concepts it refers both to positive law as a well as to the legal discourse connected to it. In terms of positive law, it is above all based upon the American Convention on Human Rights and other inter-American legal instruments, the concordant guarantees of national constitutions, the constitutional clauses opening up the domestic legal order to international law as well as pertinent national and international case law. In terms of legal discourse it is characterized by a disciplinary combination of national and international legal scholarship, a comparative mindset, and a methodological orientation towards principles.

The proponents of this approach set a stark accent on rights and the transformation of political and social realities but reject plebiscitary presidentialism and the centralization of power as a transformative strategy. Accordingly, the separation of powers and independent institutions are accorded great weight. ICCAL supports the regionally secured realization of the central promises of national constitutions, the embedding of the national legal orders in a larger context, and the transformation of society through law.

On 24 February 2011, the Inter-American Court of Human Rights (IACtHR) issued its decision in Gelman v. Uruguay, condemning Uruguay for the forced disappearance of María Claudia García Iruretagoyena de Gelman and the kidnapping of her daughter Macarena Gelman during the military dictatorship. In the decision, the Court ordered Uruguay to remove all obstacles that enabled those responsible for the crimes to go unpunished. Accordingly, it declared that Law 15848 on the Expiry of Punitive Claims of the State (“Expiry Law”), a 1986 amnesty law that prevented the prosecution of people who had committed serious human rights violations during the military dictatorship, was incompatible with the American Convention on Human Rights and the Inter-American Convention on Forced Disappearance of Persons, and therefore lacked legal effect. That the law had been passed democratically and subsequently reaffirmed two times by popular referendums did not change the Court’s evaluation or impede the Court from annulling it.

Pope Francis has more epistemological and moral authority than any scientist, philosopher, lawyer, or politician. He has the second most popular twitter feed, and his messages are more likely to be retweeted than anyone else’s. The Pope has the power to order some and to persuade others. Most of all he has the power to affect the global agenda. When the Pope speaks, people listen.

Pope Francis commands respect for many reasons. He sits atop a hierarchy with which 1.2 billion people are affiliated. Organized more like a multinational corporation than a nation-state, the Catholic Church and its members are spread across all the countries of the world. But it is not just Catholics who take his pronouncements seriously. As a man of the South, occupying an office in the North, with no national allegiance except to a country of 110 acres with a population of 842, he is uniquely situated to speak out on global issues. Laudato Si’ also commands respect because it is an astonishingly well-written argument for a powerful point of view, one that in various bits and pieces can be found in the small journals and ignored books of environmental philosophy and theology.

The brokerage firm, E.F. Hutton, used to have a tagline that went, “When E.F. Hutton speaks, people listen.” On climate change, the Pope has spoken, but will people listen? And should they? The first question is empirical; the second, normative.

The papal encyclical, Laudato Si’, was released in May 2015 to much acclaim. It is an extraordinarily wideranging document. Although I will focus, in particular, on its discussion of climate change, it is worth noting that the encyclical addresses virtually the entire litany of environmental problems—loss of biodiversity, hazardous chemicals and wastes, marine pollution, replacement of virgin forests with monoculture plantations, and lack of access to clean drinking water, among others—as well as related social problems such as extreme poverty and urban overcrowding.

The Encyclical Letter of Pope Francis centers on an interpretation of Biblical texts that establishes human power over other creatures and the right to beneficial use of them, imposing a type of guardianship or a trust, not a right of ownership. The Pope emphasizes that message he presents is intended to be a universal one, not limited to all Catholics or even all Christians, but to “every person living on this planet.” The encyclical begins by reviewing several aspects of the present ecological crisis, then considers some principles drawn from the Judaeo-Christian tradition which can render commitment to the environment more coherent.

The recent Encyclical by Pope Francis, Laudato Si’, On Care for our Common Home, is a remarkable document, both original and continuous within the tradition of Catholic social doctrine. Emerging from and grounded in a very specific religious tradition and constrained by the peculiar encyclical literary form, the document nonetheless seeks to open a dialogue with “every person living on this planet,” about care for our common home. Using the urgency of addressing global climate change as its point of departure, the Encyclical does a superb job summarizing the scope of the present environmental crisis and the disproportionate harms suffered by vulnerable populations of the poor and excluded. It also provides a careful analysis of the root causes of environmental degradation, mapping out the complex linkages and tensions between globalization, economic growth, liberalized trade, unsustainable patterns of consumption and production, environmental degradation, involuntary migration, immiseration and growing inequality. In this respect, the Encyclical, may well come to serve as a useful position paper for the upcoming Paris climate change negotiations or as a background text for a course on climate change or sustainable development. Yet, properly understood, this is not its true purpose. Rather, in its deepest sense, the Encyclical is an appeal to all of humanity to listen to “the cry of the earth and the cry of the poor,” to reject the “throwaway” culture of consumerism, and to embrace a culture of care and a commitment to pursue integral ecology. It is, in other words, a call to ecological conversion: a call addressed not only to individuals but also to individuals-in-community.

A fundamental theme running through the remarkable 192-page Papal Encyclical on Climate Change is the notion of solidarity—;between nations and peoples, and between and within generations. In the words of the Encyclical, “[w]e require a new and universal solidarity.”. This translates, in the Encyclical’s vision, into principled cooperation between states and peoples, because “[a]ll of us can cooperate as instruments of God for the care of creation, each according to his or her own culture, experience, involvements and talents.”. In the international climate change regime this vision takes the form of the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), a principle that the Encyclical explicitly endorses. The CBDRRC principle, however, lends itself to varying interpretations and has thus proven deeply contentious as the basis for climate cooperation. This is in particular in relation to the 2015 climate agreement that is due to be finalized in Paris in December 2015. This short essay explores the extent to which the Encyclical supports one or the other interpretation of this principle, and how closely aligned (or not) the Encyclical’s vision is to the emerging 2015 climate change agreement.

As the world turns its attention to Paris this December, all eyes will be on international decisionmakers, including those from the United States, to see if meaningful progress on climate change can finally be made. Climate change, of course, is the great environmental challenge of our time, a challenge that is irrevocably bound up with energy production and consumption. This “super wicked” problem long has been seen as a political, economic, ecological, and social one. However, as Pope Francis’ encyclical makes clear, it is a moral problem as well.

Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.

The Nuremberg principles affirmed by the U.N. General Assembly and formulated by the International Law Commission (ILC) provide that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him (sic) from responsibility under international law.” Few would dispute this basic principle. More contested is the question of who has authority to impose consequences on individuals for international crimes committed on behalf of states. This is because, if an individual has acted with actual or apparent state authority, imposing consequences on the individual without her state’s consent runs counter to traditional notions of state sovereignty and noninterference.

The happiest outcomes of the work of the International Law Commission (ILC) result when those charged with reporting on a topic elucidate the existing law with maximum objectivity and accuracy and when, where desired, they formulate such possibilities for its avowed progressive development as find a solid basis in emerging practice or international jurisprudence and are unlikely to arouse implacable opposition among members of the Commission or member states of the General Assembly. This history should be foremost in the minds of those presently leading the Commission’s work on the immunity of state officials from foreign criminal jurisdiction as they come next session to report on possible limitations on and exceptions to such immunity. Whether the eventual aim is codification or reform, any consideration of this most controverted and combustible of contemporary questions of international law that is not based on an impartial and convincing assessment of relevant state practice and international case-law and that misreads the political temper of the times will end in tears, in the Commission itself and even more so in the Sixth Committee of the General Assembly.

Alan Sykes’ editorial comment, Economic “Necessity” in International Law, provides a multi-layered analysis of the defense of “necessity” in international investment disputes. Sykes’ main proposition is that the obligation to compensate investors for government measures prejudicing their investments during economic emergencies mitigates the risk of moral hazard and incentivizes States to “select the least expensive way to protect their interests (the optimal policy instrument).” Otherwise, he contends, “actors will take risks that imperil them to an excessive degree if they can save themselves by imposing costs on others.” Sykes nonetheless argues that payment of the compensation could be deferred in light of the emergency, and not be subject to market interest rates.

Applying economic theory to the analysis of economic “necessity” defenses in international law is highly desirable and Alan Sykes does a wonderful job in his editorial comment. As I have argued, the application of contract theory to international investment agreements (IIAs) helps us analyze their commitment and flexibility mechanisms. Sykes uses such an optimal contracting approach to address the problem of necessity in IIAs. I concur in broad terms with his conclusion, but I argue for greater contextualization in the application of the argument. Contract theory, although useful as a basic frame to address necessity claims, does not by itself fully encompass the economic analysis of law. Economic theory is diverse and not always unequivocal in its insights. Contract theory, as applied so far to international law, takes the state as a black box and assumes that the state will behave rationally. I will take a look into the box in order to analyze the incentives of different actors involved, including some of the beneficiaries of Iias—foreign investors.

Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. According to a study by the United Nations Secretary-General, “[t]he most common form of violence experienced by women globally is intimate partner violence” including “a range of sexually, psychologically and physically coercive acts.” The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. Other research suggests that approximately 40% of all assaulted women are forced into sex at one time or another by their male partners.