The objects and effects of non-party intervention before the International Court of Justice

2021 ◽  
pp. 1-21
Author(s):  
Zeno Crespi Reghizzi
Keyword(s):  
Present Article ◽  
Case Law ◽  
International Court Of Justice ◽  
Binding Effect ◽  
Court Of Justice ◽  
International Court ◽  
Potential Binding ◽  
Legal Nature ◽  
State Practice ◽  
Traditional Construction

Abstract The International Court of Justice recognized the legitimacy of ‘non-party intervention’ under Article 62 of the Statute in its 1990 landmark decision on Nicaragua’s intervention in the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras). Such form of intervention ‘is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court’. Its purpose is ‘protecting a State’s “interest of a legal nature” that might be affected by a decision in an existing case’. Whereas non-party intervention under Article 62 now forms part of the law in action within the Court’s system, its precise features and regime remain uncertain. Doubts concern the identification of its precise objects and the potential binding effects for a non-party intervener of the judgment issued between the original parties. The present article explores these issues in the light of the Court’s case law and state practice. It demonstrates that non-party intervention can have various potential objects, depending on how the intervener intends to influence the future judgment between the original parties. Building on the identification of these objects, it then questions the traditional construction denying any binding effect of the decision for a non-party intervener and argues that a judgment issued following intervention is binding as between the original parties and the intervener in so far as this judgment, whether expressly or by implication, decides issues related to the object of intervention.

The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law

2006 ◽  
Vol 19 (4) ◽  
pp. 1041-1075
Author(s):  
GIOVANNI DISTEFANO
Keyword(s):  
Present Article ◽  
Theoretical Approach ◽  
Case Law ◽  
International Agreements ◽  
Territorial Disputes ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Territorial Sovereignty ◽  
International Court ◽  
Legal Processes

The present article aims to examine a set of legal constructions related to the concept of legal title in territorial disputes. Any international jurist cannot but strongly feel the need of a theoretical approach and framework explaining the acquisition and loss of territorial sovereignty. This conceptualization will be put to the test in the light of the ICI's case law, especially, but not exclusively, the most recent ones. To this end, the article is structured in three main parts in addition to introduction: the first will be devoted to the building of a comprehensive concept of territorial title while rejecting the traditional ‘modes of acquisition’ of territorial sovereignty (part 2). Part 3 will deal with the legal processes through which territorial titles are actually created, extinguished, or modified: roughly speaking, this happens by an international agreements (legal acts) or by virtue of norm-creating facts. Last, but not least, we shall examine – in part 4 – the highly debated and sensitive topic of the relations between effectiveness and formal legal title from the standpoint of the establishment or loss of territorial sovereignty. As we have endeavoured to show in this writing the concept of legal title reunites and resolves the tension between fact (effectiveness) and formal gegal title (law). In this respect four situations will be put under scrutiny in order ultimately to test our construction of a new concept of territorial title.

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.

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.

Part III The Major Cases and Controversies: A Survey of State Practice, 6 The Major Cases

2019 ◽  
Author(s):  
McCaffrey Stephen C
Keyword(s):  
Dispute Resolution ◽  
The Other ◽  
Third Party ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
State Practice ◽  
The World ◽  
International Profile

This chapter explores cases bearing on the field of international watercourses that have been decided by the International Court of Justice or its predecessor. States have submitted only a few disputes concerning international watercourses to the International Court of Justice or its predecessor, though the pace is clearly picking up. There are doubtless many factors that explain this phenomenon, including reluctance to give a dispute a high international profile, reluctance to trust dispute resolution to a third party over whom states have no control, hesitancy about submitting a dispute to a tribunal composed of judges, the expense of litigating before the World Court, and the like. On the other hand, states are bringing an increasing number of cases of all kinds, including those concerning international watercourses, to the Court, indicating that it is becoming a more popular forum for the resolution of disputes.

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.

Fiat iustitia . . . Professor Krzysztof Skubiszewski and His Vision of the Relations Between the International Court of Justice and the Security Council

2016 ◽  
Vol 18 (2) ◽  
pp. 129-150
Author(s):  
Bartłomiej Krzan
Keyword(s):  
United Nations ◽  
Present Article ◽  
Security Council ◽  
International Court Of Justice ◽  
Late Professor ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations

The present article addresses the legacy of the late Professor Krzysztof Skubiszewski with a view to analysing his vision of the judicial function of the International Court of Justice vis-à-vis the Security Council. Although the issue has attracted much scholarly and practical attention, it may be argued that the position taken by Skubiszewski, successfully combining theory with practice, remains highly relevant despite the lapse of time and subsequent developments. The relations between the two main organs of the United Nations are examined particularly in the light of the latest jurisprudence of the International Court of Justice.

The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) – Preliminary Objection

1997 ◽  
Vol 10 (3) ◽  
pp. 541-551
Author(s):  
Roger S. Clark
Keyword(s):  
United States Of America ◽  
Case Law ◽  
Third Party ◽  
Advisory Opinion ◽  
Islamic Republic ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
Court Of Justice ◽  
International Court ◽  
Islamic Republic Of Iran

The case-law of the International Court of Justice (Court) is replete with arguments about whether the Court has jurisdiction to entertain the particular dispute (or request for advisory opinion) with which the Court is faced. These arguments are framed at one level as matters of interpretation of the relevant instruments. But they typically play out as well a multiplicity of variations on the overlapping themes of sovereignty (the extent to which states have been prepared to concede decision-making to third-party settlement mechanisms) and justiciability (the extent to which they will accept that an issue may be governed by ‘law’ and thus be susceptible to resolution by judicial actors).

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