Obligations erga omnes and the question of standing before the International Court of Justice

2021 ◽  
pp. 1-21
Author(s):  
Priya Urs
Keyword(s):  
International Law ◽  
International Community ◽  
Genocide Convention ◽  
International Court Of Justice ◽  
Collective Interest ◽  
Progressive Development ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Issue Attention

Abstract A number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

Barcelona Traction Share

2018 ◽  
pp. 141-150 ◽  
Author(s):  
Filippo Fontanelli ◽  
Giuseppe Bianco
Keyword(s):  
International Law ◽  
General Public ◽  
Transnational Corporations ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
State Obligations ◽  
Canadian Company ◽  
A Share

This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story of a Canadian company, with Spanish subsidiaries, whose shares were mainly owned by Belgian citizens. Second, it reminds lawyers of the dispute between Belgium and Spain before the International Court of Justice, in the matter of the corporate hijacking of the company at the hands of Francisco Franco’s cronies. Third, it evokes to international jurists controversial technicalities like the nationality of transnational corporations and the nature of state obligations owed erga omnes, that is, to the international community. The chapter illustrates how a piece of paper has—within a certain epistemic circle—quasi-mystical connotations, speaking to the promises and the unfulfilled potential of international law.

scholarly journals State Instigation in International Law: A General Principle Transposed

2019 ◽  
Vol 30 (2) ◽  
pp. 391-414
Author(s):  
Miles Jackson
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
General Principle ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Comparative Survey ◽  
International Legal System ◽  
Domestic Law

Abstract It is widely believed that international law imposes no general prohibition on instigation – no general prohibition on states inducing, inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a representative set of domestic jurisdictions for comparative analysis. Second, through a brief comparative survey, I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And, third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

The Place of Treaties in the Codification and Progressive Development of International Law

2019 ◽  
pp. 86-100
Author(s):  
Georgio Gaja
Keyword(s):  
International Law ◽  
Good Reason ◽  
General Assembly ◽  
Present Contribution ◽  
International Court Of Justice ◽  
Progressive Development ◽  
Advantages And Disadvantages ◽  
Court Of Justice ◽  
International Court

Codification of international law may be pursued by various methods. This contribution analyzes advantages and disadvantages of codification conventions. Treaties defined as codification conventions express customary rules in a revised form. They often contain provisions that cover matters not previously regulated or that supplement or specify existing rules. Whether a treaty displaces a customary rule in the relations between the states that are parties generally is a matter of interpretation of the relevant treaty. The limited number of ratifications of codification conventions that have entered into force raises problems concerning the relations between these conventions and customary rules. The present contribution also examines the consideration by the International Court of Justice of the relations between codification conventions and customary rules. In many cases, the Court has not provided reasons for concluding that the content of the customary rule corresponds to that of a provision in the codification convention. In recent years, the General Assembly has often chosen not to promote a codification convention, but there is no good reason for abandoning recourse to an instrument that has significantly contributed to the development of international law in several areas.

Review of the Rôle of the International Court of Justice

1972 ◽  
Vol 66 (3) ◽  
pp. 479-490 ◽  
Author(s):  
Leo Gross
Keyword(s):  
United Nations ◽  
International Law ◽  
International Court Of Justice ◽  
Progressive Development ◽  
Court Of Justice ◽  
International Court ◽  
Substantive Law ◽  
International Law Commission ◽  
Law Commission

The stagnation in the functioning of the International Court of Justice is only one of several indicators of the neglect by Members of the United Nations of the development and modernization of adjective law. There has been gratifying progress in the codification and progressive development of substantive law through the International Law Commission and other bodies, but substantive law without an adequate adjective law is bound to lack in effectiveness and uniform and predictable application.

Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo

2011 ◽  
Vol 39 (1) ◽  
pp. 1-11 ◽  
Author(s):  
James Ker-Lindsay
Keyword(s):  
International Law ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Parent State ◽  
International Court ◽  
Narrow View ◽  
The Icj ◽  
The Right ◽  
Key Questions

For 60 years, the international community has limited the right of territories to gain independence without the permission of the “parent state.” Such limits were, however, challenged when Kosovo unilaterally declared independence from Serbia, in February 2008. As a result, Belgrade referred the matter to the International Court of Justice (ICJ). On 22 July 2010, it came back with its long-awaited decision. Taking a narrow view of the question, the majority argued that, in general, declarations of independence, as mere statements, do not violate international law unless stated otherwise by the Security Council. Thus, Kosovo's declaration of independence cannot be considered as being wholly “unique” – as those states that supported its statehood have claimed. On the key questions of whether Kosovo's secession is legal, or if it is even a state, they chose to avoid controversy. On these points, the international community is no clearer now than it was before the case.

The International Court of Justice and the Macedonian –Greek Case

2018 ◽  
Vol 3 (4) ◽  
pp. 8
Author(s):  
Bujar Ahmedi ◽  
Besian Ahmeti
Keyword(s):  
International Law ◽  
Historical Development ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

In the international law there is often a mention of the peaceful arrangements of international disputes. The resolution of international disputes is also part of the most important principles of international law. Given the historical development of international law, we observe that states that have been subjected to the fictitious subjects of international law have often had disputes between them on interrelated issues. For these differences between states to be provided international law different mechanisms are being considered in order to resolve disputes and diplomatic aids and in some cases also judicial means that serve to resolve these disputes. This paper presents the dispute between Macedonia and Greece regarding the issue of the name where the role of the international community has been extremely important by putting its diplomacy at its disposal with the sole aim of reaching a resolution of the parties'.

Metamorphoses: Judge Shigeru Oda and the International Court of Justice

1996 ◽  
Vol 33 ◽  
pp. 185-221 ◽  
Author(s):  
Michael Reisman
Keyword(s):  
International Law ◽  
Significant Role ◽  
Strategic Choices ◽  
International Court Of Justice ◽  
Progressive Development ◽  
Unique Character ◽  
Court Of Justice ◽  
International Court ◽  
Made In ◽  
The Way

SummaryA series about the judges of the International Court must be based on two postulates: first, that the unique character and, of course, “value-structure” of each judge ü a variable of some importance in the application, if not incremental formation, of international law; and second, that the International Court is an important institution and has played a significant role in “the progressive development of international Law.” While welcoming the idea of thü series, the reviewer has reservations about the way these postulates have been embraced and adopted by the author and outlines his reservations about key jurisprudential assumptions and strategic choices that were made in designing the idea and about the ways those assumptions and strategies have been implemented.

The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion

2011 ◽  
Vol 105 (1) ◽  
pp. 81-90 ◽  
Author(s):  
Marko Divac Öberg
Keyword(s):  
United Nations ◽  
International Law ◽  
International Community ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration

As the international community waited for the International Court of Justice (the Court) to deliver its advisory opinion of July 22, 2010, commentators wondered whether the Court would skirt difficult issues by adopting a narrow reading of the question put to it. While the Court's ruling in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo did turn out to be limited, the opinion contributes significantly to the Court's jurisprudence on the legal effects of United Nations resolutions.

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