I. Recent Cases: Case Concerning the Gabcïkovo-Nagymaros Project (Hungary/Solvakia)

1998 ◽  
Vol 47 (3) ◽  
pp. 688-697 ◽  
Author(s):  
Malcolm D. Evans ◽  
Phoebe N. Okowa
Keyword(s):  
General Interest ◽  
International Court Of Justice ◽  
Legal Implications ◽  
International Court ◽  
Injunctive Relief ◽  
Specific Performance ◽  
The Status ◽  
The Law ◽  
To Come ◽  
The Relationship

The dispute between Hungary and Slovakia concerning the Gabcïkovo-Nagymaros project could easily be described as one of the most important cases to come before the International Court of Justice (“the Court”) in recent years. The case raised a number of very important questions of international law, many of which had received no previous consideration in the Court's jurisprudence. In the first place, the Court was asked by both parties for orders of specific performance. Although the competence of the Court to issue orders of specific performance or injunctive relief had been the subject matter of much discussion in the academic literature, the issue had never before been raised squarely before the Court. Second, this was the first dispute in which the Court was directly asked to consider the consequences of the legal developments in the field of environmental protection. Despite the proliferation of treaty developments in that field, the status of many of those norms remains problematic Third, although the relationship between the law of treaties and the law of State responsibility has generated much general interest, the Court had not in the past been presented with an opportunity to pronounce on some of these issues. Finally, this is also one of the few cases in which the Court has been asked to consider the legal implications of State succession outside the context of decolonisation.

Global Regulatory Standards in Environmental and Health Disputes

2021 ◽  
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

3 Components of the International Law of Weaponry

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
Traditional Approach ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Status ◽  
General Principles Of Law ◽  
The Law

This chapter considers the sources of the law of weaponry and discusses matters critical to understanding it. Taking the traditional approach, in addition to general principles of law recognized by nations, the sources of the law consist of customary law and of treaty law, the latter referred to as ‘conventional law’. The chapter looks at customary law, which is, according to Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the law applied by the court as including ‘international custom, as evidence of a general practice accepted as law’. The chapter discusses what does, and respectively does not, comprise state practice and then looks at treaties, how they are made and interpreted, how states explain their understandings of them and related matters. Individual sections then address the status at law of the ICRC Study of Customary International Humanitarian Law and of the UN Secretary General’s Bulletin.

The Nuclear Weapons Advisory Opinion of the International Court of Justice and the Fundamental Distinction Between the Jus ad Bellum and the Jus in Bello

1999 ◽  
Vol 12 (3) ◽  
pp. 613-624 ◽  
Author(s):  
Terry Gill
Keyword(s):  
Nuclear Weapons ◽  
Armed Conflict ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
Law Of Armed Conflict ◽  
The Law ◽  
The Relationship ◽  
Potential Use

The 1996 Nuclear Weapons Advisory Opinion of the International Court has been both hailed and criticized on various grounds. However, one area, namely the Court's treatment of the distinction between the law regulating the use of force and the humanitarian law of armed conflict, has received relatively little attention. This author is convinced and concerned that the Court's treatment of this issue misconstrued the relationship between these two branches of the law, and in doing so potentially weakened any restraining influence the law of armed conflict might have on the potential use of nuclear weapons.

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.

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.

Oil Platforms: Lessons of Dissensus

2005 ◽  
Vol 74 (2) ◽  
pp. 179-208
Author(s):  
Veijo Heiskanen
Keyword(s):  
The United States ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
International Court ◽  
Law Of Armed Conflict ◽  
The Common ◽  
The Law ◽  
The Many ◽  
Settlement Of Disputes ◽  
The Relationship

AbstractThe recent judgment of the International Court of Justice in the Case Concerning the Oil Platforms ('Oil Platforms') is a fascinating and confusing mix of formal consensus and substantive dissensus. By fourteen votes to two, the Court dismissed both the United States defence and Iran's substantive claim in the case. Yet the Court's nearly complete unanimity is belied by a considerable substantive disagreement on the reasoning leading to this outcome, as reflected in the numerous separate and dissenting opinions appended to the judgment. An analysis of these opinions reveals that the disagreement within the Court cannot be considered simply a reflection of varying judicial appreciations of law and fact; it reveals a fundamental, even philosophical disagreement relating to the very function of the Court: Is the principal function of the Court the adjudication of claims brought by States, or the settlement of disputes between States? The fundamental disagreement among the Judges on this issue seems a reflection of their training and background – between Judges trained in the common law tradition and those hailing from the civil law or similar more policy-oriented backgrounds. Apart from the jurisprudential disagreement relating to the function of the Court, the judgment also raises important issues of substantive international law, in particular those relating to the relationship between the law of peace and the law of armed conflict. The judgment testifies to the continuing validity of this distinction, despite the many attempts of international legal scholarship to move beyond this distinction to a more enlightened era of international relations.

Case Analysis: The Gabčíkovo-Nagymaros Project and the Law of State Responsibility

1998 ◽  
Vol 11 (3) ◽  
pp. 609-623 ◽  
Author(s):  
René Lefeber
Keyword(s):  
International Law ◽  
Case Analysis ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Law ◽  
The Relationship ◽  
Clear Line ◽  
Legal Consequences

In the Gabčíkovo-Nagymaros proceedings, the parties, viz. Hungary and Slovakia, defended their conduct, amongst others, with arguments derived from the relationship between the law of treaties and the law of state responsibility, and from the law of state responsibility itself. In its judgment, the International Court of Justice disentangled the mixture of arguments derived from the law of treaties and the law of state responsibility advanced by Hungary, and drew a clear line between these two branches of international law. Second, it rejected several circumstances that were advanced by the parties to preclude the wrongfulness of their conduct. On both these accounts, the author opines that the declaratory dicta of the Court have contributed to the development of the law of state responsibility. Third, the Court decided on the legal consequences of the intersecting internationally wrongful acts committed by Hungary and Slovakia. According to the author, the Court erred in its reasoning on this account by confusing the award of cessation of the internationally wrongful acts with the award of reparation for these acts.

scholarly journals Normy ius cogens w orzeczeniach i opiniach doradczych Międzyamerykańskiego Trybunału Praw Człowieka

2017 ◽  
pp. 31-66
Author(s):  
Edyta Lis
Keyword(s):  
Human Rights ◽  
International Law ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Judicial Decisions ◽  
International Court ◽  
The Status ◽  
The Law ◽  
International Law Commission ◽  
Advisory Opinions

The concept of ius cogens norms is one of the most controversial issue in the international law. These norms were definied in the art. 53 of Vienna Convention on the law of treaties of 1969, according to which ius cogens norm it is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of the international law having the same character. This definition indicates that these norms limit the ability of States of creation or change the norms of the international law. However, the indicated definition does not include examples, scope and substance of ius cogens norms. In the commentary to the art. 50 of the draft articles on the law of treaties the International Law Commission stated that substance of these norms will be worked out in the States’ practice and in the judicial decisions of international courts . Contrary to International Court of Justice Inter-American Court of Human Rights (IACtHR), in its judicial decisions in great measure widened the scope and the substance of ius cogens norms. Consequently, IACtHR has developed a progressive case law in this realm. In separate opinion, in the case Caesar v. Trinidad and Tobago from 2005, judge A.A. Conçado Trindade concluded that the IACtHR, in identification of ius cogens norms, have done more than any other international court. In its judgements and advisory opinions IACtHR recognized that e.g. forced going missing, tortures, discriminations, extrajudicial executions are the infringements of ius cogens norms. Taking into consideration jurisprudence of the IACtHR it is hard to say on what grounds it was prescribed that a given norm is forming a part of ius cogens. This article analyses the way the IACtHR identified ius cogens norms. Therefore it was indispensable to define its competence ratione materiae. Next, taking into consideration the gravity and the nature of infringement and the fact that all infringements of human rights which have been described simultaneously constitute violation of other human rights, this paper is limited only to three of them. It also outlines what functions, in the jurisprudence of IACtHR, fulfil the attribution to the norms the status of ius cogens norms.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

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