Judgment in the First Case Before the African Court on Human and Peoples' Rights: A Missed Opportunity or Mockery of International Law in Africa?

2009 ◽  
Author(s):  
Chacha Bhoke Murungu
Keyword(s):  
International Law ◽  
First Case ◽  
Missed Opportunity

Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse

2015 ◽  
Vol 28 (3) ◽  
pp. 623-642 ◽  
Author(s):  
MARCUS JOYCE
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Hybrid Approach ◽  
Criminal Court ◽  
International Criminal Law ◽  
Choice Test ◽  
Moral Choice ◽  
Alternative Test ◽  
Missed Opportunity

AbstractArticle 31(1)(d)1of the Rome Statute of the International Criminal Court (ICC Statute) presents an important opportunity to reconsider the defence of duress in cases of unlawful killing. While the case ofErdemovićhas done much to substantiate the existence of the defence of duress at international law it appears to have curtailed the doctrine by interpreting it with reference to a strict form of proportionality characteristic of duress as justification. On the other hand, duress as excuse requires some measure of proportionality. This article will contend that the hybrid approach of Nuremberg Military Tribunals (NMTs), defined duress and the moral choice test primarily by reference toculpa in causa, not resorting to duress, and a ‘softer’ proportionality and in doing so, provided a more flexible and workable model for duress. Article 31(1)(d) of the ICC Statute, although an interesting attempt to find the balance between duress as excuse and justification, is a missed opportunity to redefine the defence in international criminal law. An alternative test for duress, with reference to the principles that emerged from the jurisprudence of the NMTs, is required in order to find the correct balance between duress as excuse and justification.

International Water R esources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-Fertilisation?

2011 ◽  
Vol 13 (3) ◽  
pp. 237-254 ◽  
Author(s):  
Owen McIntyre
Keyword(s):  
Water Resources ◽  
International Law ◽  
Guiding Principle ◽  
Self Interest ◽  
Geological Formation ◽  
International Water ◽  
International Law Commission ◽  
Transboundary Aquifers ◽  
Law Commission ◽  
Missed Opportunity

AbstractWhile the Draft Articles on the Law of Transboundary Aquifers adopted in 2008 by the International Law Commission (ILC)1 follow the same format as the 1997 UN Watercourses Convention2 and might reasonably have been expected to adopt a similar normative approach wherever possible, the Preamble to the Draft Articles fails to make any reference to this or to other seminal instruments or codifications in the area of international water resources law and the document takes, in some respects, a radically different and less progressive stance. The principal difference in the Draft Articles, and one which can be linked to most of the other deviations, is the inclusion of an express reference to the sovereignty of aquifer States in a manner implying that this is the key guiding principle of the instrument. This emphasis on State sovereignty over shared, and often migratory, water resources appears to represent something of a retreat from the distributive equity inherent in the firmly established principle of equitable and reasonable utilization and from the intense procedural and institutional cooperation required to achieve the community of interests approach necessary to give meaning to this principle. Reliance on sovereignty implies instead a drift towards a position based more on the narrow and immediate self-interest of States. In order to avoid such an interpretation, it would have been better if the Draft Articles had sought to establish two separate but parallel regimes, one based on sovereignty and covering the static geological formation of the aquifer, and one covering the shared water resources contained in, and transiting through, the formation and based on equitable and reasonable utilization.

The Construction of the Rebus Sic Stantibus Clause in International LawException, Rule, or Remote Spectator?

2020 ◽  
pp. 274-284
Author(s):  
Robert Kolb
Keyword(s):  
International Law ◽  
Legal Order ◽  
Vienna Convention ◽  
Private Law ◽  
Fundamental Change ◽  
The Third ◽  
First Case ◽  
The Law

This chapter attempts to shed some light on the rule-exception scheme through the lens of the doctrine of fundamental change of circumstances in international law. In classical international law, the doctrine was considered either as non-existent, or under the guise of private law analogies or specially construed for the purposes of international law. The extent of the ‘exception’ to the ordinary law wrought by the clause was different in the context of these three versions: nought in the first case, related to specific treaties in the second, related to the entire legal order in the third. With the Vienna Convention on the Law of Treaties (VCLT) codification of 1969, the reach of the doctrine was reduced to an extremely narrowly tailored treaty-exception. Since then, the doctrine has rarely been invoked—even more rarely with success—in international litigation. The inroad of that exception has thus been progressively narrowed, if not extinguished.

Connecting the Obligation Gap: Indonesia’s Non-Refoulement Responsibility Beyond the 1951 Refugee Convention

2021 ◽  
pp. 1-15
Author(s):  
Dio Herdiawan Tobing
Keyword(s):  
International Law ◽  
Political Rights ◽  
Refugee Convention ◽  
International Convention ◽  
Customary International Law ◽  
Rights Of The Child ◽  
Human Rights Treaties ◽  
Convention Against Torture ◽  
International Obligations ◽  
Missed Opportunity

Abstract This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.

The Colombian-Peruvian Asylum Case: The Practice of Diplomatic Asylum

1952 ◽  
Vol 46 (1) ◽  
pp. 142-157 ◽  
Author(s):  
Alona E. Evans
Keyword(s):  
Latin America ◽  
International Law ◽  
Far East ◽  
International Court Of Justice ◽  
Legal Sanction ◽  
Court Of Justice ◽  
American States ◽  
First Case ◽  
International Court ◽  
Long Time

By a turn of legal fate, the first case between two American states to be decided by either the International Court of Justice or its predecessor, the Permanent Court of International Justice, is one which involves the controversial practice of diplomatic asylum. One can choose to regard diplomatic asylum as a principle of American international law or as a “permissive local custom,” though in no sense a principle of international law, or one can agree that “the fact that asylum is not exercised in the territory of the leading states, and is mainly resorted to in the ‘backward’ countries of the Near and Far East and of Latin America, suggests that it is a practice followed only in relation to states who are not fully civilized in the Western sense of the term, and that as such it is a temporary exception to the system of international law which obtains in the community of civilized nations.” Whatever the viewpoint, the fact remains that the practice has been indulged in for a long time, with and without formal legal sanction, and in more places than Latin America. The Colombian-Peruvian Asylum Case brings to attention the issues of the validity in international law of diplomatic asylum and of its desirability in international relations. A short sketch of the origin and development of diplomatic asylum will indicate something of its nature.

The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements

2000 ◽  
Vol 69 (4) ◽  
pp. 395-412 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
Court Of Justice ◽  
First Case ◽  
European Court ◽  
The World ◽  
Article 50 ◽  
Mixed Agreements

AbstractThis article is about the scope of the jurisdiction of the European Court of Justice to interpret, under Article 234 of the EC Treaty, international agreements which include among their contracting parties the European Community, all or some of its Member States and one or more other subjects of international law and which fall partly within the competence of the Community and partly within the competence of the Member States (so-called ‘mixed agreements’). In particular, the article addresses the question of whether, and if so to what extent, the Court's jurisdiction covers those provisions of mixed agreements which have been concluded under Member State powers. New light has been shed upon the question of jurisdiction by the Court's judgment in Case C-53/96 Hermès v. FHT concerning the interpretation of Article 50 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) annexed to the 1994 Agreement establishing the World Trade Organization (WTO) – the first case where the jurisdiction issue is addressed by the Court outside the context of association agreements. The article analyses the judgment and its implications in the light of both the Court's earlier case law and the legal and policy considerations at stake when the scope of the Court's jurisdiction is determined.

scholarly journals IMPORTANCE OF THE BEMBA CASE FOR THE INSTITUTE OF PERSONAL RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS FOR THE COMMITMENT OF CRIMES AGAINST INTERNATIONAL LAW BY THEIR SUBORDINATES

2021 ◽  
pp. 109-114
Author(s):  
B. I. Nedilko
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Personal Responsibility ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
First Case

This article is devoted to the analysis of the Jean-Pierre Bemba Gombo case of the International Criminal Court. He was a Congolese politician, as well as the founder and the head of non-governmental armed group, named “Movement for the Liberation of Congo”, which members committed number of crimes during armed conflict in Central African Republic. The importance of this case lies in the fact, that it was the first case of the International Criminal Court, where the accused was charged with crimes, committed by his subordinates, and not by the accused himself. This article reveals the main contradictions between the judgments of the Trial Chamber, which found Bemba guilty, and the Appeals Chamber, which acquitted him. The legal basics of the institute of personal responsibility of commanders and other superiors in international criminal law, which were formed in the decision of the Appeals Chamber in the Bemba case, are highlighted therein. The author addresses and analyzes the grounds for recognizing commanders and other superiors guilty for committing crimes by their subordinates. It was discovered, that Article 28 of the Rome Statute requires the commanders to take only necessary or reasonable measures to prevent or punish the crimes, committed by their subordinates, not all possible measures at the relevant time. The Trial Chamber should specify what exactly the accused had to do to prevent or punish the crimes, as well as inform the accused of it prior to the hearing. It is also necessary to take into account objective circumstances, that could prevent the commander from adequately responding to the commission of crimes by his subordinates, especially if they operated in the territory of another state. The commander's ability to take the necessary or reasonable measures to prevent or punish the crimes, committed by his subordinates, should be analyzed in relation to each individual crime he is charged with, and not in relation to all the actions of subordinates as a whole. At last, the Appeals Chamber provided an exhaustive list of criteria for determining whether the measures, taken by the commander, were sufficient.

The Beginnings of State Jurisdiction in International Law until 1648

2019 ◽  
pp. 24-39
Author(s):  
Kaius Tuori
Keyword(s):  
Roman Empire ◽  
International Law ◽  
Universal Jurisdiction ◽  
Roman Emperor ◽  
Nation States ◽  
First Case ◽  
International Legal Order ◽  
History Of ◽  
First Time ◽  
Traditional Image

This chapter examines the evolution of sovereignty, universal jurisdiction, and state authority prior to the existence of the Westphalian international legal order, studying three cases from the Roman and medieval practice. The first case is a reply by Roman emperor Antoninus Pius on the limits of his jurisdiction with regards to the high seas. The second case revolves around the Constitutio Antoniniana, a disputed legal rule that gave citizenship to all inhabitants of the Roman Empire, for the first time invoking the territoriality principle. The third case relates to the principle of universal jurisdiction and the pope’s universal authority and its implications for the development of international jurisdiction. These cases highlight that the traditional image given in the literature of the history of the world being divided into a premodern world based on the personality principle and the ‘post-Westphalian’ world dominated by nation states and the territorial principle is misleading.

scholarly journals Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law - the Case of Prosecutor v. Al Mahdi

2017 ◽  
Vol 17 (3) ◽  
pp. 486-516 ◽  
Author(s):  
Mohamed Elewa Badar ◽  
Noelle Higgins
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Islamic Law ◽  
International Criminal Tribunal ◽  
Legal Framework ◽  
Criminal Court ◽  
Case Note ◽  
Cultural Property ◽  
First Case

Al Mahdi was the first case before the International Criminal Court (icc), which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of hisbah and its operation, including the reasons why the Hisbah in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.

A Missed Opportunity? Unilateral Declarations by the European Union and the European Court of Justice’s Venezuelan Fisheries Judgment

2019 ◽  
Vol 35 (1) ◽  
pp. 55-81
Author(s):  
Eva Kassoti ◽  
Mihail Vatsov
Keyword(s):  
International Law ◽  
Case Law ◽  
International Agreement ◽  
The European Union ◽  
Fisheries Resources ◽  
European Court ◽  
Unilateral Declaration ◽  
Broad Concept ◽  
First Time ◽  
Missed Opportunity

Abstract The EU has entered into many binding undertakings (international agreements) with third States on access to fisheries resources. In the Venezuelan Fisheries case, the ECJ was, for the first time, confronted with an EU unilateral declaration granting fishing opportunities in EU waters to Venezuela-flagged vessels. We argue, contrary to ECJ’s conclusion, that the declaration is a binding unilateral act and not an international agreement. This case is important for the burgeoning debate on the ECJ’s approach to international law. It represents a missed opportunity for the ECJ to clarify its previous case-law on the broad concept of ‘international agreement’ and align it with relevant international jurisprudence and doctrine. More fundamentally, it is a missed opportunity for the ECJ to truly develop and shape international law practice and doctrine on unilateral acts by international organisations – an omission that does not comport with the EU’s self-projection as an internationally engaged polity.

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