International Court of Justice

U radu će se odrediti pojam i predočiti definicija međunarodnih obaveza, poglavito onih erga omnes. U prvome će se dijelu rada raspravljati o ključnim elementima materijalnoga međunarodnoga prava s ovim u vezi, dok će drugi dio biti posvećen međunarodnim sprovedbenim mehanizmima - procesnome međunarodnome pravu - za svrhe utvrđivanja međunarodne odgovornosti za povrede obaveza erga omnes. Polazne postavke leže u činjenici da postoji konceptualna distinkcija međunarodnih obaveza erga omnes. Postoje tako erga omnes per se, obaveze koje djeluju prema međunarodnoj zajednici u cjelini, i druga skupina, erga omnes partes, obaveze koje proizlaze za države stranke mnogostranih međunarodnih ugovora. U radu ćemo učiniti kratku analizu odnosa obaveza erga omnes per se i jus cogens. Jednako tako, a što je Međunarodni sud u Den Haagu u više svojih odluka ustvrdio, erga omnes karakter norme i pravilo o zasnivanju nadležnosti Međunarodnoga suda jesu dvije različite stvari te da, uprkos prostoj činjenici da su prava i obaveze erga omnes dio predmeta jednoga međunarodnoga spora, takvo što ipak ne daje ipso facto Sudu nadležnost da odlučuje u tome sporu. Jednak učinak na uspostavljanje nadležnosti Međunarodnoga suda ima i povrijeđena norma jus cogens, koja je kao takva predmet nekoga međunarodnoga spora između država. Nadalje, biće istraženo kakvo je to stajalište, a u odnosu na predmet našega istraživanja, zauzela Komisija Ujedinjenih nacija za međunarodno pravo donošenjem Nacrta Pravila o odgovornosti država i međunarodnih organizacija za međunarodne protupravne čine 2001, odnosno 2011. Kod postupanja u slučaju kršenja, u međunarodnopravnoj doktrini, ali i u praksi, valjalo bi razlučiti obaveze erga omnes od actio popularis. S druge strane, da li je razumno ustvrditi da se odnosni koncepti mogu valjano povezati s doktrinom univerzalne nadležnosti?

This Article addresses the development of obligations erga omnes partes and their legal status, and clarifies the extent to which the notion has had an impact on the enforcement of multilateral treaties and, in particular, human rights conventions by examining international and regional case law, soft law instruments, and state practice. It argues that the endorsement of the concept by the International Court of Justice (ICJ) has the potential to dramatically expand its application to breaches of all kinds of multilateral treaties where such breaches amount to violations of obligations pertaining to a treaty's object and purpose. In this sense, a violation of an obligation erga omnes partes is conceptually identical to a "material breach" envisaged under Article 60(2) of the Vienna Convention on the Law of Treaties, but the development of the relevant rules gives the claimant state an additional procedural remedy to institute proceedings against the violating state to end the breach.

United Nations Secretary-General Antonio Guterres acknowledged Rohingya, “one of, if not the, most discriminated people in the world”. In Myanmar, a country with a Buddhist majority, around a million Rohingya who is the minority having their language and culture, have been persecuted for decades. In the year 2014 census, Myanmar excluded Rohingya by denying basic citizenship. Thousands of Rohingya have fled to neighbouring States after facing persecution orchestrated by Myanmar security forces with the help of local Buddhist mobs. In this background, the Gambia with the help of Organisation of Islamic Cooperation filed the case in the International Court of Justice, alleging that the actions perpetrated by Myanmar violated the provisions of Genocide Convention 1948 to which both States are the parties. Myanmar rightly questioned the standing of Gambia as the interest of Gambia was not threatened or at stake. So, in the absence of a cause of action or rights of the Gambia not affecte...

Анотація
В статті розглядається проблема юрисдикції Міжнародного Суду ООН щодо позову, який готується Україною проти Російської Федерації у зв’язку з подіями 2014 року. Докладно досліджуються можливості встановлення юрисдикції ratione materiae, ratione personae, ratione loci та ratione temporis. На підставі аналізу практики Міжнародного Суду ООН робиться висновок про можливість доведення наявності юрисдикції Суду у спорі.
Ключові слова: Міжнародний Суд ООН, юрисдикція Міжнародного Суду ООН, спір України та Російської Федерації в Міжнародному Суді ООН, міжнародне правосуддя.

Аннотация
В статье рассматривается проблема юрисдикции Международного Суда ООН относительно иска, который готовится Украиной против Российской Федерации в связи с событиями 2014 года. Детально исследуются возможности установления юрисдикции ratione materiae, ratione personae, ratione loci и ratione temporis. На основании анализа практики Международного Суда ООН делается вывод о возможности доказывания существования юрисдикции Суда в споре.
Ключевые слова: Международный Суд ООН, юрисдикция Международного Суда ООН, спор между Украиной и Российской Федерацией в Международном Суде ООН, международное правосудие.

Annotation
The article considers the problem of jurisdiction of the International Court of Justice concerning an application prepared by Ukraine against the Russian Federation with regards to the 2014 events. It includes a detailed analysis of jurisdiction ratione materiae, ratione personae, ratione loci and ratione temporis. Based on the practice of the ICJ, the author concludes that jurisdiction of the Court can be established in the case.
Key words: International Court of Justice, jurisdiction of the International Court of Justice, the case between Ukraine and the Russian Federation before the ICJ, international judiciary.

Although promoting, enforcing, and ensuring respect for human rights and humanitarian law norms has been high on the international agenda for over six decades, effective implementation and enforcement still leave ample room for improvement. This article examines the potential of the International Court of Justice to contribute more towards enforcing timely and efficiently international human rights and humanitarian law standards laid down in a number of widely ratified international law instruments. To that aim it is inquired whether time is ripe to set up a standing Human Rights and Humanitarian Issues Chamber within the Court to deal with issues relating with widespread and systematic abuses to human rights and humanitarian law. Consequently, this paper deals with issues concerning the feasibility and necessity of such a Chamber within the Court.

Taking steps from Judge Higgins’ invitation to the ICJ “mak[ing] clear what standards of proof it requires to establish what sorts of facts”, the contribution addresses the Court’s case law with a view to verifying the degree of consistency in its practice. The study comes in three parts. First, the absence of rules on the standard of proof in litigation before the ICJ is addressed, and the Court's inherent power to choose the standard of proof is upheld. Second, the ICJ case law is addressed from which a highly flexible approach to the standard of proof is inferred. In particular, a two-tier approach in the matter is highlighted with regard cases in which all the disputing parties appear, whereas the Court appears to follow a single-tier analysis in cases of non-appearance. Lastly, some concluding remarks are provided, highlighting the accordance of such flexible approach with general principles of procedural law.

This article aims at providing a general assessment of the legal regime
applicable to the optional clause system, as developed in the case-law of the International Court of Justice (ICJ). In particular, the said regime appears to be sui generis and autonomous, conceptually different from both the treaty regime and the one pertaining to unilateral acts. From this perspective, at least some of the inconsistencies which prima facie
characterise the Court’s approach could be solved. At the same time, this essay will also shed light on some of the ambiguities that nonetheless seemingly exist in the ICJ’s case-law.

Alfred Thayer Mahan described the sea as a“great common,” which would serve as a medium for communication, trade and transport. The seas of Asia are witnessing an intriguing historical anomaly – rise of an indigenous maritime power against the backdrop of US domination over the region. As China transforms from an inward leaning economy to an outward leaning economy, it has become increasingly dependent on global sea; as a result we witness an evolution in its maritime strategy from near seas defense to far seas deployment strategies. It is not only patrolling the international waters but has also built a network of civilian and military infrastructure across the disputed oceanic expanse. The paper analyses the reorientation of China from a naval power to a blue water navy in an era of extensive globalisation. The actions of the Chinese have created a zone of high alert amongst its neighbors such as Japan, Philippines, Vietnam and North Korea. These nations are trying to align themselves so as to counter China’s growing brinkmanship but China has been pursuing claims through a carefully calibrated strategy in the region shunning any coercive measures taken by other forces. If China continues to expand its maritime boundaries,its neighbors – all smaller and weaker Asian nations would be limited to a narrow band of the sea along its coastlines. Hence it is essential for US to intervene and support its allies to offset Chinese supremacy. The paper intends to provide a profound analysis over the disputes in South China Sea and East China Sea focusing on Philippines and Japan respectively. Moreover, the paper attempts to give an account of US involvement in the region and its alignment with its South Asian allies. The geographic dynamics is said the breed a national coalition dominating the strategic ambitions of China as well as the weak littoral states. China has conducted behind the scenes diplomacy trying to persuade its neighbors to support its position on the territorial disputes. These efforts have been successful in creating fault lines in ASEAN thereby undermining regional integrity to reach a consensus on the issue. Chinese diplomatic efforts have also forced the US to revisit its foreign policy and engage with players like Cambodia and Laos.Current scenario in the SCS points to a strong Chinese hold trying to outspace all others with no regards to International law. Chinese activities are in contrast with US principles like Freedom of Navigation thereby signaling US to take bold actions to prevent Chinese hegemony in the region. The paper ultimately seeks to explore the changing power dynamics post the ruling from the Permanent Court of Arbitration and consequently determining the future trajectory.

The end of the Cold War was marked with hopes of many nations on the final  elimination of nuclear weapon (NW) that had bred fear of the total elimination of humanity. First decade after the end of competition between USA and Soviet Union witnessed multiple attempts to outlaw nuclear weapons as contrary to the principles of humanity and international peace. The World Health Organization’s (WHO) request in 1993 was rejected by the International Court of Justice (ICJ) on the grounds that the motion was out of the competence of this UN body. On the other hand, ICJ accepted the General Assembly’s request of 1994 to review the legality of the threat or use of NW. 

In the essay we will try to analyze major lines of argumentation of both sides: the ones who propose that NW is not banned by the international law and that ones that state the illegality of NW resulting from its inherent characteristics. The following analysis will provide a chance to look at the correlations between three major sources of the international law applicable to NW: international conventional, customary and humanitarian law.

The paper consists of three major parts. First part is dedicated to the analysis of the argumentation of the sides. It is based on but not limited with the written statements of the representatives of USA, UK and Solomon Islands. Second part of the work deals with the examination of the advisory opinion of the ICJ. Final and concluding part provides views of the author on the argumentation in general, the Court’s decision and perspectives of the initiative to eliminate the threat of NW.

Duke law professors Curtis Bradley and Mitu Gulati (B&G) have written a very interesting, original paper questioning the conventional view of the binding effect of customary international law (CIL) - that once a customary rule becomes law by the dint of the widespread practice of states in the belief they are legally required to do so (termed opinio juris) it

In recent times, claims concerning violations of the International Convention on the Elimination of All Forms of Racial Discrimination have been brought by States parties to the Convention to the attention of the International Court of Justice, and, for the first time in the course of United Nations human rights treaty bodies, to the Committee on the Elimination of Racial Discrimination. Relations between the different mechanisms of the sophisticated compliance control system set up by the Convention have been put to the test. In particular, the Qatar v. United Arab Emirates case raises the complex issue of parallel proceedings which, in the author’s opinion, can be dealt with by solutions offered by the Convention itself, rather than by the lis pendens principle.

This chapter presents a framework for understanding how international courts (ICs) use socialization strategies to influence their performance. ICs can influence both their actual and perceived performance through internal and external socialization strategies. ICs can aim to improve their actual performance by socializing actors into ICs’ norms, rules, and procedures, and essentially clarifying their appropriate roles within international courts’ legal regimes. Internally, ICs improve their actual performance by socializing their judges and administrative officials into ICs’ norms, rules, and procedures. In addition, various dimensions of ICs’ actual performance are contingent on other actors’ behaviour within ICs’ legal regimes. ICs can therefore use external socialization strategies to align these actors’ standards of legitimate, appropriate behaviour with ICs’ norms, rules, and procedures, and thus improve ICs’ actual performance. ICs’ external socialization strategies can also be directed towards influencing actors’ perceptions of IC performance. As perceptions of performance are highly subjective and vary considerably among ICs’ various stakeholders, ICs can influence their perceived performance by disseminating particular normative standards for evaluating their performance. A comparative analysis of all twenty-three permanent, operational ICs reveals the prevalence of and variation in ICs’ internal and external socialization strategies, which influence ICs’ actual and perceived performance. Socialization is thus a key means by which ICs aim to improve various dimensions of their performance, as well as their stakeholders’ perceptions of it.

On July 22, 2010, the International Court of Justice (the court or the ICJ) rendered an Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion or Opinion), considering whether the unilateral declaration of independence of Kosovo is in accordance with international law. This Paper contrasts the court’s narrow interpretation of the question put to it by the General Assembly, and its subsequent narrow conclusions, with the broader consequences of its reasoning, in particular in relation to the questions of the legality of Kosovo’s attempted secession and the legality of the recognition of Kosovo’s independence by third States. By analyzing the court’s reasoning in relation to the scope and meaning of the question as well as to whether the adoption of the declaration of independence was in violation of general international law, Security Council Resolution 1244 (1999) and the Constitutional Framework, this Paper reveals an Opinion far more damaging to Serbia’s interests than its narrow conclusions might suggest. The Paper concludes that the court’s ultimate message is that while secessionist movements are free to declare independence, achieving it in practice should be left to the international community to decide through political fora. In this light, this Paper urges Serbia and Kosovo to take up the European Union’s (EU) offer to facilitate a dialogue and begin their journey on the path towards peace, security and stability in the region.

La opinión consultiva de la Corte Internacional de Justicia sobre el caso Kosovo (2010) determinó que las declaraciones de independencia unilaterales no son contrarias al derecho internacional. El fallo resultó  restrictivo y no indagó en los límites de la libre determinación de los pueblos, abriendo el debate a cuándo y cómo puede independizarse un territorio.

Self-determination has been one of the main controversial issue on international relations and law; therefore, it is not surprising that although the nature of such disputes has changed over time from political to legal, the International Court of Justice continues to confront the relevant disputes. When a close look at the relevant cases, while many countries claim that self-determination is only a political passion, the important role of International Court of Justice (ICJ) in the development of self-determination and its obtainment a legal ground is recognized. The aim of this study is to analyze the development of self-determination right through 20. Century and the importance of the ICJ in this development. This will be achieved in the light of the Court's judgments, state declarations, which were not mentioned enough in similar articles, and the views of the judges to be examined in the South West Africa (Namibia) Advisory Opinion that were concluded by the Court.

The chapter explores the historical background to plurilingual treaty-making as well as the practice of the PCIJ and ICJ to the interpretation of plurilingual treaties. The chapter includes a detailed examination of Article 33 of the Vienna Convention of the Law of Treaties and the effect of this article on ICJ practice.

With the aim of barring Nicaragua’s fresh request for the delimitation of the continental shelf beyond 200 nautical miles, Colombia raised the issue of the res judicata effect of the previous decision of 2012, rendered in the Territorial and Maritime Dispute, whereby the ICJ had apparently settled the case and dismissed on the merits the same request. In the Judgment on preliminary objections of 2016, relating to the “new” case Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast, the ICJ held that no binding force attached to the operative part of the 2012 ruling. The outcome of the incidental proceedings
was not predictable as one might have expected, given that the decision was
taken with the casting vote of the President and prompted a strong dissent among some judges. This occurrence gives clear evidence of the interplay between several intertwined issues of international law, which the majority was called upon to deal with and balance in the present case, such as the interpretation of Article 76, paragraph 8 of the UNCLOS, the principles of res judicata and jurisdiction ratione materiae
and the duty to give reasons. The article aims to demonstrate that the Court dismissed Colombia’s third preliminary objection for underlying reasons of judicial policy, namely to secure its previous judgment of 2012 from any potential claim relating to inadequate reasoning, if construed as a final rejection on the merits.

The applications presented about the sovereignty over Antarctica by the United Kingdom on the International Court of Justice against Chile and Argentina in 1955 are analyzed. The documents delivered during the process are also revised. The defendants' States were not prepared to accept the Court jurisdiction; therefore, both causes were definitely retired from the list without resolving the dispute. Nevertheless, it seems relevant to consider these cases to know the grounds on which the implicated States and especially the United Kingdom, support their Antarctic sovereignty. It is also valuable to understand that in the end, the Chilean and Argentinian attitude helped on the process that will finish a few years later with the signature of the Antarctic Treaty.

The following contribution interprets the ICJ decision in the case of Jurisdictional Immunities of the State in a broader picture. Even if in the traditional view immunity is conceived as a ‘procedural’ rule, as the Court upheld in the judgment, however this is not the only way to address this topic. State immunity can be interpreted as a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction

El artículo hace un análisis de la Costumbre como fuente del Derecho Internacional, en el que se explican sus elementos, los diferentes tipos de costumbre así como sus efectos. Así mismo, se hace referencia a la figura del Objetor Persistente.

On 23 January 2020, the International Court of Justice (‘ICJ’) indicated provisional measures against Myanmar in the case brought by The Gambia under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). This case marks the first time that a non-injured state has brought an action at the ICJ under the Genocide Convention. The Court’s provisional measures order recognised the vulnerability of the Rohingya minority in Myanmar and directed Myanmar to take ‘all measures within its power’ to prevent the commission of genocidal acts against the Rohingya, as well as ‘effective measures’ to prevent the destruction of evidence. The Court’s tentative finding that the Rohingya people are a protected group under the Genocide Convention and that their precarious situation in Myanmar demanded protection was significant. However, the decision did little to clarify the Court’s evolving approach to ‘plausibility’ in the provisional measures context, and the Court declined the opportunity to grant relief that might have gone further towards protecting the rights at issue.

The manner by which the International Court of Justice (ICJ) deals with disputes requiring the assessment of complex scientific evidence has been the object of a rich debate in recent years. In this context, the article analyses the historical origin and the potential function of assessors, who may be appointed to sit with the International Court of Justice under Article 30 of its Statute. The topic has received little attention by scholars so far — also due to the circumstance that assessors were never appointed to sit either with the ICJ or with the Permanent Court of International Justice. Starting from the examination of the provisions of the Statute and Rules of the ICJ dealing with assessors, the article identifies the features that distinguish assessors from other categories of experts available under the Statute or which have emerged in the ICJ’s practice. The article also examines the use of “assessors” before other international tribunals, focusing in particular on the basis of article 289 of the United Nations Convention on the Law of the Sea. Finally, the paper discusses the unexplored potential functions that assessors may perform within the context of contentious proceedings before the ICJ, addressing the advantages and drawbacks of utilizing this procedural instrument.

Enforced disappearance is a human rights violation, which frequently occurs during armed conflict. Particularly, in situations of non-international armed conflicts parties to the conflict terrorise the population and suppress political opposition by ‘disappearing’ alleged supporters of the adversary party. State actors as well as non-state actors commit those crimes. While it is recognised and defined as a human rights violations and prohibited by the International Convention for the Protection of All Persons from Enforced Disappearance, International Humanitarian Law (IHL) does not contain an explicit prohibition. Enforced Disappearance is, however, prohibited by International Customary Law. Since IHL does not contain a legal definition of enforced disappearance it will be suggested to incorporate the existing International Human Rights Law (HRL) definition, based upon one concept of parallel applicability. The International Court of Justice developed the lex specialis approach to define the relationship between IHL and HRL, an approach that was further pursued by different authors. Eventually, it was argued, that a flexible understanding of the ‘lex specialis’ theory leads to- wards an approach of harmonisation. Accordingly, both legal regimes complement each other and the HRL definition of enforced disappearance is applicable in armed conflict. Yet, non-state actors are excluded as possible perpetrators in HRL, but accepted in IHL. Hence, the author suggests that the human rights definition of enforced disappearance shall be extended to harmonise with the IHL framework. This proposition results in a modified definition of enforced disappearance in the context of armed conflict, namely a definition that is not state-centred, but includes all parties to the conflict as possible perpetrators. Consequently, it provides the broadest protection possible from enforced disappearance.

Resumo: Conforme previsto no Estatuto da Corte Internacional de Justiça, apenas Estados podem ser partes nos contenciosos deste tribunal internacional. Contudo, a Corte em alguns casos teve que observar a questão da distribuição interna de competências entre os órgãos dos Estados. Isso aconteceu particularmente nos casos em que a execução da decisão da Corte estava em jogo. Nesse sentido, em função dos membros de uma federação não possuírem a capacidade de participar na CIJ, indaga-se, por quais motivos a Corte emitiu Medidas Cautelares que deveriam ser transmitidas a um estado federado, e ainda, por que isto ocorreu apenas no caso LaGrand e não nos outros casos que envolveram a mesma matéria? Desta forma, o presente artigo busca compreender o porquê da utilização de uma " nova linguagem " pela CIJ, através da analise de elementos considerados por este tribunal na emissão de MC no caso LaGrand. Palavras-chave: Estados federados. Sistema federado estadunidense. Corte Internacional de Justiça. Caso LaGrand.
Abstract: As provided in the Statute of the International Court of Justice, only States may be parties in contentious cases before this international court. However, the Court in some cases had to examine the question of the internal distribution of powers among the organs of the State. This happened particularly in cases where the implementation of the Court's decision was at stake. In this regard, since the members of a federation do not have the ability to participate in the ICJ, this article inquires for which reasons the Court issued provisional measures that should be transmitted to a federal state, and also why this occurred only in the LaGrand case and not in other cases involving the same issue? Thus, this article seeks to understand the reason of the use of a "new language" by the ICJ, by analyzing the elements considered by this court in the issuance of provisional measures in LaGrand case.