The Normativity of Public International Law Reconsidered

2020 ◽  
Vol 114 ◽  
pp. 33-37
Author(s):  
Rüdiger Wolfrum
Keyword(s):  
International Law ◽  
The Gambia ◽  
International Treaties ◽  
International Court Of Justice ◽  
Public International Law ◽  
International Courts ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point

The Order of the International Court of Justice (ICJ) of January 23, 2020 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) might form a preliminary starting point for this brief address. The Order confirms that public international law defines through international treaties, customary international law, and general principles legally binding commitments and rights of states. As a matter of consequence, based upon those norms, judgments, orders, and awards of international courts and tribunals are legally binding on the parties to the dispute in question to the extent the adjudicating body has jurisdiction.

scholarly journals THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING

2021 ◽  
Vol 29 (1) ◽  
pp. 29-54
Author(s):  
Abdul Ghafur Hamid
Keyword(s):  
International Law ◽  
Case Law ◽  
The Gambia ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Attention ◽  
International Law Commission ◽  
Multilateral Treaty

On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.

Sources of International Environmental Law

2018 ◽  
Author(s):  
Catherine Redgwell
Keyword(s):  
International Law ◽  
Environmental Law ◽  
International Environmental Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Innovative Methods ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
Environmental Norms

This chapter considers the applicability to environmental problems of the traditional sources of international law, using as the starting point the formal sources enumerated in Article 38 of the International Court of Justice (ICJ) Statute. It notes that leading treatises on international environmental law (IEL) and the account of the formal sources of IEL will likely start along the traditional positivist lines of Article 38. This chapter adheres to this practice to an extent—by discussing treaties, customary international law, and general principles. However, the discussion also moves on to, amongst other things, innovative methods of law creation, the dynamic evolution of environmental treaty texts, and the specific role played by soft law in the development and application of international environmental norms. The chapter concludes that, nonetheless, as a branch of general international law, the sources of international environmental law are the same.

scholarly journals Remarks by Maria Flores

2018 ◽  
Vol 112 ◽  
pp. 79-82
Author(s):  
Maria Flores
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Global Scale ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
Small Department ◽  
The University

I first became involved with international law while I was at university. After graduating, I decided to teach public international law. As an undergraduate, I particularly enjoyed this branch of study. I was attracted to it because it helped me to understand the problems, challenges, and breakthroughs in the field of international relations on a global scale. Therefore, after facing a competitive entry process, I joined the international law department of the Universidad de la República. It was a small department, but the university had produced some well-known scholars like Eduardo Jiménez de Aréchaga, who became a judge at the International Court of Justice, and Hector Gross Espiell, who served as a judge at the Inter-American Court of Human Rights.

Plausibility in the Provisional Measures Jurisprudence of the International Court of Justice

2018 ◽  
Vol 31 (3) ◽  
pp. 641-668 ◽  
Author(s):  
MASSIMO LANDO
Keyword(s):  
International Law ◽  
Prima Facie ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court

AbstractIn 2009, the International Court of Justice introduced plausibility as a requirement for indicating provisional measures under Article 41 of its Statute. Upon its introduction, plausibility was conceived as a test to establish that the rights asserted by applicant states might exist under international law. However, the Court subsequently developed the plausibility test into a higher standard, which requires the Court also to assess that the alleged conduct of the respondent state might breach that applicant state's asserted rights. This development has important implications for provisional measures proceedings before the Court. First, one could distinguish two aspects of plausibility, legal and factual. Second, plausibility has different functions in requests for provisional measures depending on whether the applicant state asserts rights arising under a treaty or under customary international law. Third, the Court's enquiry into plausibility could overlap with the enquiry into prima facie jurisdiction ratione materiae, although these two requirements conceivably entail different thresholds. Fourth, plausibility in provisional measures indicated in interpretation proceedings could be seen to be different from plausibility in provisional measures indicated in ordinary contentious proceedings.

scholarly journals Criminal Proceedings Against Albers

2013 ◽  
Vol 107 (3) ◽  
pp. 632-638
Author(s):  
Filippo Fontanelli
Keyword(s):  
World War Ii ◽  
International Law ◽  
World War ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Court Of Appeal

In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

France—immunity from taxation under ICJ Statute—effect of customary international law in French administrative courts

1998 ◽  
Vol 92 (4) ◽  
pp. 764-765
Author(s):  
Bernard H. Oxman ◽  
Stefan A. Riesenfeld
Keyword(s):  
International Law ◽  
Income Taxes ◽  
International Court Of Justice ◽  
Retirement Pension ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Droit International ◽  
Council Of State ◽  
Court Of Appeal

In Re Aquarone. 101 Revue Générale de Droit International Public 838 (1997).Conseil d'Etat (Assemblée), June 6, 1997.In this case, the French Council of State, sitting in its most authoritative formation, had to pass on a petition by Stanislav Aquarone for review of a judgment of the administrative court of appeal of Lyon, dismissing his request for annulment of die imposition by France of income taxes on his retirement pension for the years 1981-1986, paid by the United Nations. In a carefully crafted opinion, the highest administrative court of France rejected die petition and die claim of immunity from taxation of his retirement pay by Aquarone, a former Registrar of the International Court of Justice and an Australian national now living in Gordes, France.

scholarly journals Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 349-353
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Judicial Decision ◽  
International Court Of Justice ◽  
Judicial Decision Making ◽  
International Courts ◽  
Judicial Decisions ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Empirical Social Science

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

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