Continuation of Membership in the United Nations Revisited: Lessons from Fifteen Years of Inconsistency in the Jurisprudence of the ICJ

2011 ◽  
Vol 10 (2) ◽  
pp. 315-350 ◽  
Author(s):  
Fernando Lusa Bordin
Keyword(s):  
United Nations ◽  
Use Of Force ◽  
Former Yugoslavia ◽  
Genocide Convention ◽  
Starting Point ◽  
The Status ◽  
The Icj ◽  
The United Nations

AbstractThe judgment on preliminary objections in Croatia v. Serbia provided closure to fifteen years of controversy as to whether Serbia had access to the ICJ from 1992 to 2000, a period in which Serbia was involved in three sets of cases before the Court. At the heart of the controversy lay the question of the status of Serbia vis-à-vis the United Nations following the disaggregation of the former Yugoslavia. Taking as a starting point the series of cases relating to the application of the Genocide Convention and the legality of use of force by NATO states, this article revisits the issue of continuation of membership in the United Nations. It begins by discussing the problems posed by the “horizontal inconsistency” among the Court’s jurisdictional findings, which implied that Serbia had and did not have access to the Court in the relevant period. It then offers a critique of the ICJ’s decision in Legality of Use of Force, and proposes an approach to continuation of membership in the UN that would have allowed the Court not only to avoid inconsistency, but also to clarify an important question of UN law. The argument to be advanced is that, according to the soundest interpretation of the UN Charter, a de facto exercise of membership may produce valid legal effects.

Has Pandora's Box Been Closed? The Decisions on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations

2006 ◽  
Vol 19 (1) ◽  
pp. 105-127 ◽  
Author(s):  
MARIA CHIARA VITUCCI
Keyword(s):  
United Nations ◽  
Federal Republic ◽  
Bosnia And Herzegovina ◽  
Use Of Force ◽  
Genocide Convention ◽  
Serbia And Montenegro ◽  
Res Judicata ◽  
The Status ◽  
The United Nations

In its judgments on the preliminary objections in the Legality of Use of Force cases, the Court held that the FRY was not a UN member in the period between 1992 and 2000. This finding is controversial, at odds with previous decisions of the Court, and has indeed attracted criticism from various judges. This article proposes a different construction of the question of the FRY's membership within the UN and reviews arguments that allow doubts to be cast on the reasoning of the Court. Because of the link between UN membership and the FRY's participation in the Genocide Convention, the Court's finding in the Legality of Use of Force cases may have some implications for two sets of proceedings still pending before the Court (Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia and Montenegro). In the former case, an interpretation of the extent of the res judicata principle may allow the Court not to reopen the issue of jurisdiction, already decided in 1996 on the basis of Article IX of the Genocide Convention. In the latter case, various options might allow the FRY to be regarded as a party to the Genocide Convention.

scholarly journals The Indian Occupied Kashmir Dispute: A Legal Analysis in purview of United Nations Resolutions

2021 ◽  
Vol 4 (1) ◽  
Author(s):  
Dr. Rao Qasim Idrees, Dr. Muhammad Imran, Tahir Jamil
Keyword(s):  
United Nations ◽  
South Asian ◽  
Use Of Force ◽  
Legal Analysis ◽  
Asian Countries ◽  
Indian Government ◽  
The People ◽  
The Status ◽  
Historical Methodology ◽  
The United Nations

Kashmir is an uncontrollable conflict between the two South Asian countries: India and Pakistan. Since 1989 the people of Kashmir have faced a massive violation of human rights committed by Indian forces. The United Nations resolutions strengthened the Kashmiri’s movement of freedom. However, it is also a reality that, somehow and somewhere, the UN had failed in the Kashmir dispute in order to give the implementation to its resolutions. The Kashmir issue is complicated but could have been resolved if the UN had taken its responsibility with true letter and spirit. Recently, the Indian government changed the status of Kashmir by the abolishment of Article 370 and 35A, and also passing a Bill in August 2019, further makes the situation more difficult in Kashmir. In this situation, it is pertinent to mention here that Indian occupied Kashmir is a disputed issue in the light of UNSC resolutions between two south Asian countries. The current research is based upon descriptive and historical methodology and the facts and results are provided as per the legal analysis of the current situation of Indian occupied Kashmir. Finally, this research concludes that India cannot solve the Kashmir dispute through revocation of Article 370 and 35A of the Indian constitution provisions about the status of Kashmir, and also not use of force; the Kashmir dispute can only be resolved according to the Resolution adopted by the United Nations Commission for India and Pakistan on 13 August 1948.

‘Killing Three Birds with One Stone’? The Preliminary Objections Judgments of the International Court of Justice in the Legality of Use of Force Cases

2005 ◽  
Vol 18 (2) ◽  
pp. 237-255 ◽  
Author(s):  
SIMON OLLESON
Keyword(s):  
United Nations ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The United Nations

The ICJ in its judgments on the preliminary objections in the Legality of Use of Force cases held that it had no jurisdiction to hear the claims. Despite the unanimous concurrence in that result, it is clear that there were deep divisions within the Court as to the ground on which that decision should have been reached; only a bare majority subscribed to the reasoning that the Court was required to rule on the question of its jurisdiction ratione personae in relation to Serbia and Montenegro's uncertain status within the United Nations prior to 2000. The minority judges were highly critical of the choice of that basis of decision, in particular given its apparent implications for other cases pending before the Court.

The Decision of the International Court of Justice in the Case Concerning Legality of Use of Force (Serbia and Montenegro v. Canada)

2005 ◽  
Vol 42 ◽  
pp. 353-383
Author(s):  
Colleen Swords ◽  
Alan Willis
Keyword(s):  
United Nations ◽  
Use Of Force ◽  
Prima Facie ◽  
Genocide Convention ◽  
Humanitarian Crisis ◽  
International Court Of Justice ◽  
Serbia And Montenegro ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations

SummaryIn the spring of 1999, the NATO allies conducted a bombing campaign against the Federal Republic of Yugoslavia for several weeks. The campaign was a response to the failure of negotiations at Rambouillet, France, relating to a situation in Kosovo that United Nations agencies had characterized as a “humanitarian crisis.” In late April, only a few days after filing an Optional Clause declaration under the Statute of the International Court of Justice accepting the compulsory jurisdiction of the court subject to reservations, Yugoslavia initiated proceedings in the court against ten NATO allies, including Canada. The application was accompanied by a request for the indication of “provisional measures” pursuant to the statute, enjoining the NATO allies from continuing the use of force against Yugoslavia. Yugoslavia relied upon its new declaration and upon the compromissary clause of the Genocide Convention as grounds of jurisdiction. In June 1999, the court refused the request for provisional measures on the ground that it lacked prima facie jurisdiction. Canada and other remaining respondents filed preliminary objections on jurisdiction and admissibility. The objections on jurisdiction were based on the grounds that had been advanced at the provisional measures stage and largely endorsed by the court: first, that Yugoslavia was not then a member of the United Nations and was therefore not entitled to make an Optional Clause declaration; second, that the declaration was limited to future disputes; and, third, that the subject matter of the dispute was not covered by the Genocide Convention, which could therefore not be invoked to establish jurisdiction.Following oral hearings in April 2004, the court ruled in a judgment of 15 December 2004 that it lacked jurisdiction. The ruling was based exclusively on the fact that Yugoslavia lacked United Nations membership and standing in the court in 1999. The judgment concludes that the exception in Article 35(2) of the statute relating to “treaties in force” does not entitle a non-member of the United Nations to appear before the court in a matter related to the Genocide Convention, which the Court interprets as applying only to treaties in existence before 1945. This reasoning came as a surprise, since the court had assiduously avoided the issue of UN membership both in its provisional measures ruling and in its decisions in closely related proceedings taken by Bosnia and Croatia against Yugoslavia pursuant to the Genocide Convention. It remains to be seen how the judgment will be reconciled with rulings already made on jurisdiction in the proceedings taken by Bosnia, where jurisdiction has already been confirmed and where hearings on the merits are scheduled for 2006.

Australia and People Seeking Asylum who Arrive by Boat

2018 ◽  
pp. 518-536
Author(s):  
Caroline Fleay
Keyword(s):  
Political Parties ◽  
United Nations ◽  
Government Policies ◽  
The Past ◽  
The People ◽  
The Status ◽  
Repeated Use ◽  
United Nations Convention ◽  
The United Nations

Throughout the past forty years various leaders from both major political parties in Australia have categorized the arrival by boat of people seeking asylum as a “crisis” and the people themselves as “illegal.” This is despite Australia being a signatory to the United Nations Convention Relating to the Status of Refugees, and receiving relatively few people who seek asylum compared with many other countries. Punitive government policies and processes have further reinforced these representations, such that “crisis” and “illegal” can now be understood as both categories of analysis and practice. The repeated use of such categories may be helping to produce and reproduce prejudice and racism and obscure the needs and experiences of people seeking asylum.

Stepping back from the brink: Why multilateral regulation of autonomy in weapons systems is difficult, yet imperative and feasible

2020 ◽  
Vol 102 (913) ◽  
pp. 235-259
Author(s):  
Frank Sauer
Keyword(s):  
United Nations ◽  
Arms Control ◽  
Use Of Force ◽  
Human Control ◽  
Conventional Weapons ◽  
United Nations Convention ◽  
The United Nations ◽  
The Military ◽  
Weapons Systems

AbstractThis article explains why regulating autonomy in weapons systems, entailing the codification of a legally binding obligation to retain meaningful human control over the use of force, is such a challenging task within the framework of the United Nations Convention on Certain Conventional Weapons. It is difficult because it requires new diplomatic language, and because the military value of weapon autonomy is hard to forego in the current arms control winter. The article argues that regulation is nevertheless imperative, because the strategic as well as ethical risks outweigh the military benefits of unshackled weapon autonomy. To this end, it offers some thoughts on how the implementation of regulation can be expedited.

scholarly journals Implementation in practice: The use of force to protect civilians in United Nations peacekeeping

2018 ◽  
Vol 25 (2) ◽  
pp. 458-485 ◽  
Author(s):  
Ingvild Bode ◽  
John Karlsrud
Keyword(s):  
New York ◽  
International Relations ◽  
United Nations ◽  
Online Survey ◽  
Use Of Force ◽  
Member States ◽  
Peacekeeping Operations ◽  
The United Nations ◽  
United Nations Peacekeeping ◽  
Normative Foundations

Since the failures of the United Nations of the early 1990s, the protection of civilians has evolved as a new norm for United Nations peacekeeping operations. However, a 2014 United Nations report found that while peacekeeping mandates often include the use of force to protect civilians, this has routinely been avoided by member states. What can account for this gap between the apparently solid normative foundations of the protection of civilians and the wide variation in implementation? This article approaches the question by highlighting normative ambiguity as a fundamental feature of international norms. Thereby, we consider implementation as a political, dynamic process where the diverging understandings that member states hold with regard to the protection of civilians norm manifest and emerge. We visualize this process in combining a critical-constructivist approach to norms with practice theories. Focusing on the practices of member states’ military advisers at the United Nations headquarters in New York, and their positions on how the protection of civilians should be implemented on the ground, we draw attention to their agency in norm implementation at an international site. Military advisers provide links between national ministries and contingents in the field, while also competing for being recognized as competent performers of appropriate implementation practices. Drawing on an interpretivist analysis of data generated through an online survey, a half-day workshop and interviews with selected delegations, the article adds to the understanding of norms in international relations while also providing empirical insights into peacekeeping effectiveness.

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