A Court of “UN Law”

2005 ◽  
Vol 38 (1-2) ◽  
pp. 134-164 ◽  
Author(s):  
Michla Pomerance
Keyword(s):  
World Order ◽  
General Assembly ◽  
Legal Advice ◽  
Self Defense ◽  
The Status ◽  
New States ◽  
The Icj ◽  
Legal Contexts ◽  
Advisory Opinions

Resort to the Court presupposes a disposition to depoliticize the issues; when this precondition is not attained on both sides of the fence, the Court's Advisory Opinions are bound to be ineffective. The Opinions will become part and parcel of the political contest and share in its outcome.[Leo Gross]It would make a mockery of the independence of the Court if it could never “reach conclusions at variance with the conclusions stated by the General Assembly”. … It would also render the Court largely useless as an organ for giving legal advice to the Assembly.[D.H.N. Johnson]There are some worrying signs that, far from developing traditional legal techniques in a way acceptable to old and new States, the Court may depart radically from legal patterns accepted in the West in favour of outright politicization of the Court.[Lyndel V. Prott]In the present case, worrisome trends that have been infecting the ICJ-General Assembly nexus peaked more overtly and ominously than ever before, recalling earlier fears that the Court's advisory pronouncements would be either ineffective political utterances or ex parte quasi-compulsory judgments rendered without the consent of a state principally concerned. The manner in which the JCJ's advisory function was exercised raises grave doubts regarding the “judicial” nature of that function, and more generally, the future role of the Court in clarifying the law and strengthening world order in the age of the global terrorist scourge.Employing inapt analogies and formalistic, formulaic, and occasionally inconsistent reasoning, the Court evinced an unjudicial eagerness to furnish the General Assembly with the imprimatur it sought for its pre-set conclusions. The Court adopted a consistently unevenhanded posture that manifested itself, inter alia, in its embracing the assumptions and nomenclature of the Assembly resolution; ignoring the context of ongoing terrorism; minimizing the status of Israel as an objecting quasi-litigant while magnifying the role and rights of the Assembly; upholding questionable Assembly practices; presenting a sanitized and skewed version of the crucial factual and legal contexts; embracing a simplistic and Manichean view of the rights and obligations of the protagonists in conflicts bearing on self-determination; and unjustifiably restricting the Charter-affirmed inherent right of self-defense. In all this, it faithfully mirrored the perspective of the Assembly and proved itself, more patently than ever before, to be a Court of “UN Law” rather than of consensual international law. And to the extent that its “UN Law” perspective continues to spill over from the advisory to the contentious sphere, the process of “undeifying” the Court may gather strength.

10. Peaceful settlement of disputes

2019 ◽  
pp. 128-143
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Dispute Settlement ◽  
General Assembly ◽  
International Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj ◽  
Un General Assembly ◽  
The One ◽  
Settlement Of Disputes ◽  
Advisory Opinions

This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve peacefully their disputes and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary-General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (e.g. compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.

scholarly journals The Language of the Church: Westminster in Review

2019 ◽  
Vol 26 (1) ◽  
pp. 73-87
Author(s):  
W. John Carswell
Keyword(s):  
General Assembly ◽  
Church Of Scotland ◽  
Presbyterian Church ◽  
The Status ◽  
The Church ◽  
The Way

This paper reflects on the debate at the 2018 General Assembly of the Church of Scotland on reviewing the status of the Westminster Confession of Faith as its principal subordinate standard of faith. It considers the role of doctrine in the church; whether it is appropriate to devote time and resources to consideration of doctrinal statements at this juncture when the church may be seen to be seen to be facing more pressing issues; and whether a framework such as the Presbyterian Church (USA)’s Book of Confessions might serve as a useful model for the way ahead – or whether such an approach would in fact only hamper lasting renewal in the church.

The South West Africa Cases: an Appraisal

1967 ◽  
Vol 21 (1) ◽  
pp. 1-23 ◽  
Author(s):  
Richard A. Falk
Keyword(s):  
West Africa ◽  
Major Question ◽  
International Court Of Justice ◽  
South West ◽  
International Court ◽  
New States ◽  
The Icj ◽  
South West Africa ◽  
International Adjudication

Ethiopia and Liberia instituted litigation in 1960 before the International Court of Justice (ICJ) to test the legality of South Africa's administration of the mandated territory of South West Africa. The ICJ received, thereby, an opportunity to deal with a major question of international concern. Hopes were raised that the role of international adjudication would be enhanced by the results of this litigation. The case was also expected to demonstrate to the new states that the procedures and institutions of traditional international law could be used to promote, as well as to retard, their distinctive goals in international life.

Strangers in West African Societies

Africa ◽  
1963 ◽  
Vol 33 (4) ◽  
pp. 307-320 ◽  
Author(s):  
Elliott P. Skinner
Keyword(s):  
Time Perspective ◽  
West African ◽  
Political Autonomy ◽  
Nation States ◽  
The Status ◽  
New States ◽  
Opening Paragraph ◽  
The Stranger

Opening ParagraphThe difficulties attending the attempt of the new African polities to weld their disparate elements into viable nation-states have been popularly attributed to ‘tribalism’. Certainly, in some cases groups indigenous to a region did come into conflict as new states arose there, but a hard look at tribal relations in modern Africa shows these relations to be of a different order from those of pre-European times. One element in the so-called ‘tribalism’ in modern Africa, and one which has so far escaped systematic treatment, is the conflict which arose between Africans indigenous to an area and African ‘strangers’—those groups which for various reasons had moved out of their homelands and had established relatively long-term residence in the territories of other groups—as political autonomy and independence became a reality. An examination of the factors which made for conflict between ‘locals’ and ‘strangers’ in West African societies would not only give us the opportunity to understand this phenomenon in a time-perspective, but would also enable us to see whether the status and role of the ‘stranger’ in these societies could throw light on the universal problem of the ‘stranger’.

The Absence of State Consent to Advisory Opinions of the International Court of Justice: Judicial and Political Restraints

2010 ◽  
Vol 24 (2) ◽  
pp. 191-207
Author(s):  
Mahasen Aljaghoub
Keyword(s):  
Main Role ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Integral Role ◽  
The Icj ◽  
Palestinian Territory ◽  
Advisory Opinions

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, (UN) and its Statute is an integral part of the UN's Charter. The court's integral role within the UN has largely been misunderstood especially in the way the court has viewed its advisory jurisdiction. The ICJ always asserts that the delivery of an advisory opinion represents its participation in the UN's work and thus, in the absence of compelling reasons, a request for an opinion ought not to be refused. Some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, which might result in not embracing the philosophy of “judicial restraint” in the court's advisory jurisdiction. They also contend that the absence of consent in advisory cases has led the court to overlook its judicial restraint. This article argues that those commentators have overlooked the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs, and has consequently called for applying the principle of consent as a condition for giving an advisory opinion on questions relating to disputes pending between States. In the present article, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion is analysed to see whether the absence of Israeli consent has undermined the ICJ's judicial character. The author is of the view that the court, as the principal judicial organ of the UN, should, by a cautious judicial policy, provide enlightenment to the UN and participate to achieving its goals while at the same time adhering to its judicial character.

Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?

2005 ◽  
Vol 99 (1) ◽  
pp. 62-76 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
Terrorist Attacks ◽  
General Assembly ◽  
Advisory Opinion ◽  
United Nations General ◽  
Self Defense ◽  
The Icj ◽  
United Nations General Assembly ◽  
The Right ◽  
Self Defence

In October 2003, the Israeli permanent representative addressed the United Nations General Assembly on why Israel felt compelled to build a lengthy barrier spanning hundreds of kilometers across certain areas of the occupied West Bank of the Jordan River. Among other things, Ambassador Dan Gillernian stated: [A] security fence has proven itself to be one of the most effective non-violent methods lor preventing terrorism in the heart of civilian areas. The fence is a measure wholly consistent with the right of States to self-defence enshrined in Article 51 of the Charter. International law and Security Council resolutions, including resolutions 1368 (2001) and 1373 (2001), have clearly recognized the right of States to use force in self-defence against terrorist attacks, and therefore surely recognize the right to use non-forcible measures to that end.

10. Peaceful settlement of disputes

2017 ◽  
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Dispute Settlement ◽  
General Assembly ◽  
International Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj ◽  
Un General Assembly ◽  
The One ◽  
Settlement Of Disputes ◽  
Advisory Opinions

This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve peacefully their disputes and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation or the ‘good offices’ of the UN Secretary-General and on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (e.g. compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor-State arbitration and in the World Trade Organization

The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions

2002 ◽  
Vol 15 (4) ◽  
pp. 781-804 ◽  
Author(s):  
Mutlaq Al-Qahtani
Keyword(s):  
Security Council ◽  
General Assembly ◽  
International Court Of Justice ◽  
International Courts ◽  
Judicial Decisions ◽  
National Courts ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

Together with the Security Council and the General Assembly, the International Court of Justice is one of the most important guarantors of peace, security and co-operation among states. The role of the ICJ in the enforcement of its decisions has received little attention in the existing literature. Although international courts, regional courts and national courts do not physically enforce their decisions, they have various levels of enforcement mechanism procedures. Nevertheless, it has been widely and mistakenly believed that it is not the business of the ICJ to enforce its decisions, but rather this is the business of other political bodies of the United Nations. It is argued in this paper that this proposition is not accurate and, instead, the ICJ has at its disposal various enforcement procedures and is, moreover, under statutory obligations to participate actively in policing and enforcing its decisions.

10. Peaceful settlement of disputes

2021 ◽  
pp. 133-148
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Dispute Settlement ◽  
General Assembly ◽  
International Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj ◽  
Un General Assembly ◽  
The One ◽  
Settlement Of Disputes ◽  
Advisory Opinions

This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve their disputes peacefully and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (eg compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.

scholarly journals Legal Nature of Advisory Opinions of the International Court of Justice

2019 ◽  
Author(s):  
Petro Halimurka ◽  
Ihor Zeman
Keyword(s):  
Case Law ◽  
Customary Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Legal Nature ◽  
The Status ◽  
The Icj ◽  
Advisory Opinions

The article explores the legal nature of advisory opinions of the International Court of Justice. It has been established that advisory jurisdiction consists of at least two main elements – ratione personae and ratione materiae. The original power to request advisory opinions is given to the General Assembly and the Security Council. The Court’s case-law demonstrates that political aspects of question or political motives don’t give any grounds to refuse the request for an advisory opinion. The advisory opinions de jure are not legally binding. However, in practice, due to its quality and the status of the International Court of Justice, the advisory opinions are authoritative. In order for the advisory opinion to be authoritative, it is important that the Court’s position is not divided. Advisory proceedings in its form are similar to the proceedings in disputes, indicating the judicial nature of the advisory opinions. It has been found that in practice, the bodies that requested an advisory opinions of the ICJ, as a rule, follow them. An analysis of the interpretation and application by the Court of the international treaties in the advisory opinions demonstrates that the Court acts as the main judicial organ of the United Nations. There has been established the indirect influence of the ICJ on the formation of an international custom through the use of resolutions of the UN agencies as proof of opinio juris. In the advisory opinion Reparation for Injuries Suffered in the Service of the United Nations International Court of Justice has created a new rule of international customary law regarding the status of a legal entity in international organizations and, consequently, personal legal personality. It is also worth mentioning the advisory opinion Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, by which the Court has given an impetus to the development of international customary law in the area of reservations to multilateral treaties, in particular with humanitarian purposes. In the advisory opinion of the Western Sahara, the Court not only substantiated the universality of the principle of self-determination, but also clarified what features, in it’s opinion, should have the will of the people. In the advisory opinion Legality of the Threat or Use of Nuclear Weapons the Court substantiated that the rules of international humanitarian law became part of international customary law. Advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has contributed to the understanding of a number of norms as customary. In particular, the Court confirmed the customary nature of the Hague Convention Respecting the Laws and Customs of War on Land of 1907. In addition, the Court noted that the obligation to respect the right of other peoples to self-determination was a commitment erga omnes. Key words: court; law; justice; dispute; advisory opinion; case-law; custom.

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