Unilateral Diplomatic Assurances as an Alternative to Provisional Measures

2017 ◽  
Vol 15 (3) ◽  
pp. 445-471 ◽  
Author(s):  
William Thomas Worster
Keyword(s):  
Human Rights ◽  
The Other ◽  
Legal Obligation ◽  
International Court Of Justice ◽  
Dual Nature ◽  
Usual Approach ◽  
Court Of Justice ◽  
European Court ◽  
International Court

During litigation on the international plane, states sometimes will issue assurances either to the other litigant or to the international court directly. This article explores how those assurances interact with applications for provisional measures. The practice of courts varies with regard to how to react to these assurances, though the usual approach is that assurances issued to another state or individual are generally non-binding, while assurances issued to the court directly are binding. At the same time, litigants can apply to the court for provisional measures to prevent actions that would disturb the dispute. When the assurances are considered non-binding, they are treated as questions of fact and can be assessed for credibility and reliability, as a part of the provisional measures analysis. But when the assurances are considered binding, they are treated as questions of law, and the undertaken legal obligation disposes of the request for a provisional measures order. This article will examine the practices of the International Court of Justice and the European Court of Human Rights on this issue, identifying where their practices diverge and converge, and recommending that the dual nature of assurances, as both factual and legal, be considered in assessing their value.

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.

Crimea in International Courts and Tribunals: Matters of Jurisdiction

2018 ◽  
Vol 21 (1) ◽  
pp. 378-403
Author(s):  
Gaiane Nuridzhanian
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
International Courts ◽  
Preliminary Examination ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Inter State

The events taking place in Crimea since early 2014 have given rise to a number of international disputes currently pending before international courts and tribunals. Ukraine instituted inter-State proceedings against Russia before the International Court of Justice, the European Court of Human Rights and an unclos Annex vii Tribunal. Seven investor-State cases have been commenced against Russia. The Prosecutor of the icc is conducting preliminary examination into the crimes allegedly committed in Crimea in 2014 and afterwards. Foreign courts have also had to deal with cases related to the annexation of Crimea. This article provides an overview of cases pending before international courts and tribunals in relation to events in Crimea. The focus is on the questions related to jurisdiction of the international courts and tribunals seized in Crimea-related cases. The study explores the limits of the jurisdiction of international courts to adjudicate disputes concerning the interpretation and application of a treaty arising in connection with a larger dispute regarding the use of force, respect for sovereignty and territorial integrity. The article also discusses novel and debated jurisdiction-related matters that arise in cases brought in relation to events in Crimea. A brief description of cases heard in foreign courts is provided as well.

scholarly journals Specyfika odpowiedzialności za naruszenia Europejskiej Konwencji Praw Człowieka związane z działalnością nieuznawanych reżimów – analiza orzecznictwa

2020 ◽  
pp. 27-66
Author(s):  
Szymon Zaręba
Keyword(s):  
Human Rights ◽  
International Criminal Tribunal ◽  
Effective Control ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Protection Of Human Rights ◽  
International Responsibility

The aim of the article is to compare the way in which the issue of responsibility for violations related to the acts of unrecognized authorities claiming to be States is treated by the European Court of Human Rights and other international courts, particularly the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. The article considers in detail the relations between jurisdiction and responsibility, responsibility of parent States (including the concept of “positive obligations”) and responsibility of States which provide assistance to unrecognized regimes (with emphasis put on the concept of “effective control”). The results of the study indicate that the jurisprudence of the European Court differs in several important aspects from decisions of other international courts. These differences, while undoubtedly enhancing the protection of human rights in Europe, contribute to the process of fragmentation of the law of international responsibility.

scholarly journals Temporal jurisdiction of international judicial and arbitral courts

2011 ◽  
pp. 211-230
Author(s):  
Sanja Djajic
Keyword(s):  
International Investment ◽  
The Other ◽  
Vienna Convention ◽  
Common Elements ◽  
International Forum ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Temporal Aspects

Author explores different temporal aspects of jurisdiction of International Court of Justice, European Court for Human Rights and international investment arbitrations. Temporal limitations are two-fold: non-retroactivity of international acts, on one hand, and ratione temporis conditions for each and every international forum, on the other. Despite differences courts tend to conceptualize common elements across the borders of different jurisdictional rules. The rule of non-retroactivity will find its application before different fora, but discrepancies will emerge with respect to concepts of continuous and composite acts which potentially may overcome temporal limitations. This article explores intertemporal rule and non-retroactivity within the meaning of Article 28 of the Vienna Convention on the Law of Treaties and Articles 13-15 of ILC Articles on State Responsibility.

State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State

2012 ◽  
Vol 13 (6) ◽  
pp. 773-782 ◽  
Author(s):  
Paul Christoph Bornkamm
Keyword(s):  
Human Rights ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Legal Proceedings ◽  
State Immunity ◽  
Court Of Justice ◽  
European Court ◽  
International Court

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

Inside Out or Outside In? Examining Human Rights in Situations of Armed Conflict

2007 ◽  
Vol 9 (1) ◽  
pp. 33-58 ◽  
Author(s):  
Elspeth Guild
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
The State ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Inside Out

AbstractWhat duties do states have to individuals who suffer as a result of armed conflict? While the International Court of Justice has stated that the protection offered by human rights conventions does not cease in case of armed conflict, it has not provided any clarity on how this is to be interpreted. This article examines how the European Court of Human Rights has interpreted the duty of a state to guarantee human rights to persons in whose territory the state is engaged in armed conflict.

The Participation of Nongovernmental Organizations in International Judicial Proceedings

1994 ◽  
Vol 88 (4) ◽  
pp. 611-642 ◽  
Author(s):  
Dinah Shelton
Keyword(s):  
Human Rights ◽  
Nongovernmental Organizations ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
Judicial Proceedings ◽  
The Impact ◽  
Do So

Nongovernmental organizations are playing an increasingly important role in international litigation. This study will analyze the participation of nongovernmental organizations, primarily as amici curiae, in the proceedings of four permanent international courts: the International Court of Justice, the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights. After discussing the impact of amici in national and regional courts, it recommends that the International Court of Justice expand its acceptance of submissions from nongovernmental organizations in appropriate cases. The Court has a jurisdictional basis to do so and amici have usefully contributed to cases before other courts.

Voting Behaviour and National Bias in the European Court of Human Rights and the International Court of Justice

1997 ◽  
Vol 10 (1) ◽  
pp. 49-67 ◽  
Author(s):  
Martin Kuijer
Keyword(s):  
Human Rights ◽  
Ad Hoc ◽  
Voting Behaviour ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Tribunals ◽  
Judicial Procedure ◽  
National Governments

Independence and impartiality of the judiciary is a conditio sine qua non for confidence in, and the authority and success of, any judicial procedure. This article takes a close look at the voting patterns of the judges of two influential international tribunals: the International Court of Justice and the European Court of Human Rights. To what extent do national judges (and judges ad hoc, in particular) vote consistently with the position of their national governments? By conducting a factual analysis of the voting behaviour of the judges, the present paper aims at drawing some tentative conclusions on the fulfilment of the requirements of independence and impartiality in the operation of these two distinguished courts. Of all influences to which men are subject, none is more powerful, more persvasive or more subtle than the tie of allegiance that binds them [judges] to the land of their homes and kindred and to the great sources of the honors and preferments for which they are so ready to spend their fortunes and to risk their lives.

The ICJ, the ECJ, and the Integrity of International Law

2003 ◽  
Vol 52 (1) ◽  
pp. 1-20 ◽  
Author(s):  
Rosalyn Higgins
Keyword(s):  
Human Rights ◽  
International Court Of Justice ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Icj ◽  
Knowledge Depth ◽  
The Relationship

The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the OctoberHuman Rights Law Journal.2

Traditional and Modern Approaches to Customary International Law: A Reconciliation

2001 ◽  
Vol 95 (4) ◽  
pp. 757-791 ◽  
Author(s):  
Anthea Elizabeth Roberts
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
The Other ◽  
Relative Importance ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Constituent Elements

The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.

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