scholarly journals Jadhav Case (India v. Pakistan)

2020 ◽  
Vol 114 (2) ◽  
pp. 281-287
Author(s):  
Victor Kattan
Keyword(s):  
Ad Hoc ◽  
Death Sentence ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Legal Representation ◽  
International Court ◽  
The Icj ◽  
Right To Communicate ◽  
To Come ◽  
Obligation To Inform

Jadhav Case (India v. Pakistan) concerned Pakistan's arrest, detention, conviction, and death sentence of Kulbhushan Sudhir Jadhav, asserted by India to be an Indian national, who had been convicted of engaging in acts of terrorism and espionage in Pakistan. This is the third dispute over the interpretation of Article 36 of the Vienna Convention on Consular Relations (VCCR) to come before the International Court of Justice (ICJ). In contrast to the Applicants in the previous consular rights cases, India sought relief that included the annulment of Jadhav's conviction in Pakistan, his release from custody, and his safe transfer to India. After unanimously finding it had jurisdiction, fifteen judges of the ICJ, with only Judge ad hoc Jillani dissenting, held on the merits that Pakistan had breached VCCR Article 36 by failing to inform Jadhav without delay of his rights under that provision; by failing to notify without delay the appropriate consular post of India in Pakistan of his detention; and by depriving India of its right to communicate with Jadhav, to visit him in detention, and arrange for his legal representation. In addition, the Court, with only Judge ad hoc Jillani dissenting, found that Pakistan is under an obligation to inform Jadhav of his rights without further delay and is obliged to provide Indian consular officers access to him. The Court further found that appropriate reparation required Pakistan to provide, by means of its own choosing, effective review and reconsideration of Jadhav's conviction and sentence to ensure that full weight is given to the effect of the violation of his rights. Finally, the ICJ, again with Judge ad hoc Jillani dissenting, declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of Jadhav's conviction and sentence.

scholarly journals Custom as a Source Under Article 21 of the Rome Statute

2021 ◽  
pp. 1-13
Author(s):  
Amit KUMAR
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Principle Of Legality

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

The Law of the Sea Related Cases in the International Court of Justice during the Presidency of Judge Stephen M. Schwebel (1997-2000)

2001 ◽  
Vol 16 (1) ◽  
pp. 1-40
Author(s):  
Barbara Kwiatkowska
Keyword(s):  
Law Of The Sea ◽  
Agenda 21 ◽  
International Court Of Justice ◽  
Unique Role ◽  
Critical Areas ◽  
International Court ◽  
The Icj ◽  
The Law ◽  
To Come ◽  
International Law Commission

AbstractThis article explores the unique role of the ICJ as the principal judicial organ of the United Nations in the development of the law of the sea as part of the global system of peace and security, during the Presidency of Judge Stephen M. Schwebel (United States) in the busiest triennium in the Court's history (1997-2000). The new style of governance brought by President Schwebel to the Court is appraised against the background of an "intrinsic" authority and paramount functions performed by the ICJ as the world's most senior international court and the only truly universal judicial body of general jurisdiction, as well as that of the continuously inter-active influence of the Court and the International Law Commission. The article surveys the law-of-the-sea-related cases of the Court in the context of an ongoing follow-up to the Overall Review and Appraisal of the UNCED Agenda 21 in the critical areas of environmental protection, international fisheries and navigation, equitable maritime delimitation and territorial questions, and international institutions. The inaugural practice of ITLOS and the awards of the two Arbitral Tribunals, of which President Schwebel was a member, are taken into due account. The article concludes that the Court will undoubtedly continue to further explore its unique role, as importantly reinforced in the triennium 1997-2000, in the years to come.

The U.S. Supreme Court: Garcia V. Texas

2012 ◽  
Vol 51 (1) ◽  
pp. 44-53
Author(s):  
David P. Stewart
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
United States Supreme Court ◽  
The United States ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The U.S

On July 7, 2011, the United States Supreme Court declined to stay the execution of Humberto Leal García, a Mexican national who had been convicted some sixteen years ago in Texas of murder.1 Relying on the decision of the International Court of Justice (‘‘ICJ’’) in the Avena case,2 García contended that the United States had violated his right to consular notification and access under the Vienna Convention on Consular Relations (‘‘Consular Convention’’).3 He sought the stay so that the U.S. Congress could consider enactment of proposed legislation to implement the ICJ decision.4 In a 5-4 decision, the Court rejected his argument, stating that ‘‘[t]he Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.’’5 García was executed by lethal injection that evening.

Part II The Sources of the Law of State Immunity, 5 A Review of the Sources: Treaties and Projects for Codification

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
First Century ◽  
International Court Of Justice ◽  
International Convention ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
The Law ◽  
To Come ◽  
International Conventions ◽  
Law Making

This chapter provides a list of the sources, both international and national, of the law of State immunity and a brief survey of relevant treaties and projects for codification in existence prior to the adoption in 2004 of the UN Convention on Jurisdictional Immunities of States and their Property (UNCSI). Accepting the sources of international law to be as summarized in Article 38(1) of the Statute of the International Court of Justice (ICJ), law-making international conventions are clearly the best source of the principles and rules relating to State immunity. Not until the twenty-first century was the law of State immunity accorded sufficient relevance for States to adopt an international convention dealing with the topic and for the issues which it raised to come before the ICJ.

The ICJ's Jadhav Judgment and Its Implications for Pakistan and India under International Law

2020 ◽  
pp. 1-11
Author(s):  
Abhishek TRIVEDI
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

Abstract The International Court of Justice [ICJ] delivered its Judgment on Jadhav (India v. Pakistan) in 2019, finding Pakistan in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations, 1963. Thus, Pakistan is under a continuing obligation to provide, through the means of its own choosing, effective review and reconsideration [ERR] of Jadhav's conviction and sentence. This paper comments on the ICJ's Jadhav Judgment and its implications for Pakistan and India. It also evaluates the legal option if India is not satisfied with Pakistan's implementation of the ERR process effectively. In this situation, India can approach the ICJ again. This paper finds that the possibilities of India's request to be admissible before the ICJ under Article 60 of its Statute are relatively higher than the possibilities of its successful adjudication on the merits.

scholarly journals A Story of ‘Trials and Errors’ That Might Have No Happy End

2021 ◽  
pp. 119-142
Author(s):  
Jörg Luther†
Keyword(s):  
World War Ii ◽  
Cultural Context ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Forced Labour ◽  
To Come

AbstractThe International Court of Justice (ICJ) and Italian Constitutional Court (ItCC) have created a deadlock between two diverging res iudicatae on state immunities and judicial remedies as well as a tension between two republics that do not share the same constitutional and international identities. In order to avoid a further spiralling of decisions, judges tried to promote the negotiation of ‘a happy outcome’ for a category of victims of war crimes that risk dying without being entitled to any compensation. This chapter analyses the general cultural context of ‘academic diplomacy’. Both state sovereignty and human solidarity could be maintained through a voluntary compensation for moral damages to the victims of massacres, deportation, and forced labour during World War II. The moral-responsibility approach suggested by the ICJ could be stronger than the legal-liability threat backed by the ItCC. A belated common solidarity funded by both German and Italian citizens and employers could be the best way out, but considering that many of the now elderly victims are approaching the end of their lifespans, it might be cynically too late. This could, paradoxically, help to remind the world of the injustices they suffered. Yet, on grounds of this tragic end, state immunity and fundamental rights might further be delegitimized in possible wars to come.

Post-Avena Application of the Vienna Convention on Consular Relations by United States Courts

2005 ◽  
Vol 18 (2) ◽  
pp. 215-235 ◽  
Author(s):  
CHRISTOPHER J. LE MON
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Us ◽  
Us Supreme Court ◽  
The Icj

Following the judgment of the International Court of Justice in the Avena case, US courts have had a mixed record in applying the decision domestically. In this article, I examine the treatment by US courts of claims by criminal defendants alleging Vienna Convention violations, subsequent to the Avena judgment. First, I discuss the two limited decisions so far taken by the US Supreme Court regarding the Vienna Convention, and briefly explain several of the judicially-created rules that have prevented most US courts from reaching the merits of Vienna Convention claims. Next, I analyse the ICJ judgment in the LaGrand case, and provide an overview of the reception of that case by the US courts. After a summary of the Avena decision, I turn to the latest cases in which Vienna Convention claims based on Avena have been raised in US courts, focusing on the two most important decisions, and examining their contradictory rulings. As the US Supreme Court has now decided to hear an appeal in one of these cases, I conclude by arguing that the Supreme Court should take the opportunity to elucidate the role of the International Court of Justice in US law when the United States has consented to binding treaty interpretation by that court.

scholarly journals TRAVAUX PREPARATOIRES: APPLICATION BY THE INTERNATIONAL COURT OF JUSTICE IN INTERPRETATION OF INTERNATIONAL LAW

2019 ◽  
pp. 144-152
Author(s):  
S. Karvatska
Keyword(s):  
International Law ◽  
General Rule ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Law ◽  
Text Context ◽  
Advisory Opinions

The article is devoted to the analysis of the nature, essence and mechanism of the application of travaux preparatoires by the International Court of Justice (ICJ) in the process of interpreting the international law. It is proved that the interpretational practice of the ICJ shows the extension of the doctrinal approaches of the traditional perception of travaux preparatoires as an auxiliary tool. It has been established that the ICJ uses travaux preparatoires 1 to identify the intent of the legislator; 2 to provide advisory opinions; 3 to clarify the intentions of the parties to the treaty; 4) to determine the jurisdiction of the ICJ; 5) to identify the true intentions of the parties to the dispute; 6) to decide questions regarding the text, context, purpose and object of the treaty as a general rule of interpretation, fixed in Art. 31 of the Vienna Convention on the Law of Treaties, 1969.

The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v. Nicaragua

2011 ◽  
Vol 24 (1) ◽  
pp. 201-222 ◽  
Author(s):  
MARTIN DAWIDOWICZ
Keyword(s):  
Costa Rica ◽  
Vienna Convention ◽  
Main Task ◽  
Full Account ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Treaty Provision ◽  
International Court ◽  
The Icj ◽  
Proper Interpretation

AbstractThis article examines the reasoning and findings of the International Court of Justice in its judgment in Costa Rica v. Nicaragua on issues relating to the effect of the passage of time on the interpretation of treaties. In arriving at the proper interpretation of the disputed phrase ‘for purposes of commerce’ in a Treaty of Limits between the parties, which entered into force in 1858, the ICJ followed a number of interpretative steps based on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which led the Court to conclude that the meaning of this phrase must be presumed to have evolved over time. The means and methods of interpretation employed by the ICJ to determine the effect of the passage of time on treaties are examined. More specifically, the question is raised whether the ICJ's approach to determining the evolutionary character of a treaty provision, based on an interpretative presumption, may not be considered unsatisfactory insofar as it does not appear to take full account of the actual common intention of the parties – the main task of interpretation.

scholarly journals International Remedies in National Criminal Cases: ICJ Judgment in Germany v. United States

2002 ◽  
Vol 15 (1) ◽  
pp. 69-86
Author(s):  
Douglass Cassel
Keyword(s):  
United States ◽  
Vienna Convention ◽  
Criminal Cases ◽  
International Court Of Justice ◽  
Foreign Nationals ◽  
Court Of Justice ◽  
International Court ◽  
Right To Communicate

In Germany v. United States (2001), the International Court of Justice ruled that the Vienna Convention on Consular Relations confers judicially enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without notice of their right to communicate with their consulates. The Court also ruled that states which fail to give timely notice cannot later invoke procedural default to bar individuals from judicial relief. However, the Court did not clearly address other issues, such as requiring individuals to show prejudice to the outcome of the trial, or denial of certain remedies for Convention violations, which may effectively foreclose relief.

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