Compromissory Clauses and the Jurisdiction of the International Court of Justice

1987 ◽  
Vol 81 (4) ◽  
pp. 855-887 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
International Agreement ◽  
International Court Of Justice ◽  
The Past ◽  
Optional Protocol ◽  
Court Of Justice ◽  
International Court ◽  
Technical Basis

Many governments are reluctant to submit disputes voluntarily to the International Court of Justice for binding adjudication. Only a few disputes are brought to the Court with the current agreement of all the parties. When that happens, no matter what the technical basis for the Court’s jurisdiction may be—a compromis, compulsory jurisdiction, or a compromissory clause in a substantive international agreement or an optional protocol—the Court’s jurisdiction is unlikely to be questioned. When the respondent state does not wish the dispute to be submitted to the Court, however, the applicant state must compel adjudication by relying on jurisdiction founded upon the respondent state’s consent given in the past. Consent may be found in declarations accepting the compulsory jurisdiction of the Court provided for in Article 36(2) of its Statute. Alternatively, such consent may be found under Articles 36(1) or 37, which permit jurisdiction to be based on compromissory clauses.

scholarly journals Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 349-353
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Judicial Decision ◽  
International Court Of Justice ◽  
Judicial Decision Making ◽  
International Courts ◽  
Judicial Decisions ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Empirical Social Science

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

scholarly journals Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S.-Palestinian Relations

2019 ◽  
Vol 113 (1) ◽  
pp. 143-149
Keyword(s):  
United States ◽  
The United States ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Palestine Liberation Organization ◽  
Optional Protocol ◽  
Court Of Justice ◽  
International Court ◽  
Settlement Of Disputes ◽  
The Relationship

While Palestine considers itself a state, the United States does not currently recognize it as such. The relationship between the two has continued to deteriorate following the December 2017 announcement that the United States would recognize Jerusalem as Israel's capital and move its embassy there. Alleging that the embassy relocation violates international law, Palestine brought a case against the United States in the International Court of Justice (ICJ) in September of 2018. The United States reacted by announcing its withdrawal from the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (Optional Protocol). Also in the fall of 2018, the Trump administration closed the Palestine Liberation Organization (PLO) office in Washington, curtailed its own Palestinian-focused mission in Jerusalem, and sharply cut U.S. funding focused on Palestinian interests.

scholarly journals The Application of Estoppel in International Law and Experiences for Vietnam

2020 ◽  
Vol 1 (1) ◽  
pp. 89-114
Author(s):  
Tran Thang Long
Keyword(s):  
International Relation ◽  
International Law ◽  
Prime Minister ◽  
The State ◽  
International Court Of Justice ◽  
Law System ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Wrong Interpretation

AbstractIn international relation, estoppel is a principle whereby a state is not able to say or act against what it said or did before. The theory of estoppel was originated in the past from the English law system, which was later incorporated into international law. Its main purpose is to prevent a State from benefiting from its inconsistent attitudes, and thus, causing damage to another State. Therefore, estoppel must meet the main conditions. First, the expression of the said State leads to the assumption of the estoppel must be clear and non-ambiguous. Second, this expression must be expressed voluntarily, unconditionally and must be well authorized. Third, there must be a goodwill trust from another State into the expression of a State giving that expression, resulting in damage to the State with this trust or to the benefit of the expressive side. The paper examines the principle of estoppel in international law and the practice of applying this principle in cases tried at the International Court of Justice. On that basis, the paper discusses explaining the factors that constitute an estoppel situation for Vietnam in order to reject the China’s wrong interpretation of the 1958 Diplomatic Note of the late Prime Minister Pham Van Dong.

Immunities and Criminal Proceedings; (Equatorial Guinea v. France)

2021 ◽  
Vol 191 ◽  
pp. 219-373
Keyword(s):  
International Law ◽  
Customary Law ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
International Court Of Justice ◽  
State Immunity ◽  
Optional Protocol ◽  
Court Of Justice ◽  
International Court ◽  
Settlement Of Disputes

International Court of Justice — Provisional measures — Diplomatic relations — Immunity of State officials and State property — Prima facie jurisdiction — United Nations Convention on Transnational Organized Crime, 2000 (“Palermo Convention”) — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Plausibility — Article 22 of Vienna Convention on Diplomatic Relations, 1961 — Inviolability of diplomatic premises — Whether building located at 42 Avenue Foch could plausibly be regarded as housing diplomatic mission of Equatorial Guinea — Irreparable prejudice — Urgency — Link between provisional measures requested and rights sought to be protected International Court of Justice — Jurisdiction — Palermo Convention — Whether references to customary international law incorporate those rules of customary law into the Convention — Sovereign equality of States — Whether dispute regarding alleged breach of customary law principle within jurisdiction of the Court under the Palermo Convention — Vienna Convention on Diplomatic Relations, Optional Protocol — Dispute regarding status of buildings claimed as premises of diplomatic mission International Court of Justice — Admissibility — Abuse of process — Abuse of rights — Whether reasons not to exercise jurisdiction under Optional Protocol to the Vienna Convention on Diplomatic Relations — Matter for preliminary objections — Whether exceptional circumstances existing — Whether Application inadmissible on that basis — Abuse of rights — Whether ground of inadmissibility when establishment of rights claimed properly a matter for merits Treaties — Palermo Convention — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Article 35(2) of Palermo Convention — Scope of jurisdiction ratione materiae under Palermo Convention — Article 4 of Palermo Convention — Incorporation of customary rules of international law on State immunity by reference to principles of sovereign equality, territorial integrity and non-intervention in internal affairs of other States — Alleged overextension of jurisdiction by France in implementing provisions of Palermo Convention 220Diplomatic relations — Vienna Convention on Diplomatic Relations, 1961 — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Articles II and III of Optional Protocol — Meaning of “premises of the mission” under Article 1(i) of Vienna Convention — Whether definition of “premises of the mission” falling within scope ratione materiae of Vienna Convention — Whether a dispute concerning inviolability of the building at 42 Avenue Foch State immunity — Jurisdictional immunity — Head of State immunity — Vice-President of State accused of misappropriation of funds and money laundering by authorities of another State — Whether entitled to immunity — Basis for any claim to immunity — Customary international law — Whether incorporated into Palermo Convention

ICJ Halts Antarctic Whaling – Japan Starts Again

2015 ◽  
Vol 4 (1) ◽  
pp. 181-194 ◽  
Author(s):  
Cymie R. Payne
Keyword(s):  
State Party ◽  
International Court Of Justice ◽  
International Convention ◽  
The Past ◽  
Court Of Justice ◽  
Margin Of Appreciation ◽  
International Court ◽  
Commercial Whaling ◽  
Fact Finding ◽  
The Antarctic

AbstractThe International Court of Justice (ICJ) judgment inWhaling in the Antarctic, a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

Israel’s Violations of the International Agreement in Siyasah Kharijiyyah (Study of Israeli-Palestinian Peace Agreement 1993-2007)

2019 ◽  
Vol 19 (1) ◽  
Author(s):  
Masyrofah Muchtar ◽  
Nahrowi Salam
Keyword(s):  
Empirical Approach ◽  
International Agreement ◽  
Legal Certainty ◽  
Peace Agreement ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

The implementation of the principle of Pacta Sunt Servanda in every international agreement is crucial, considering that the principle necessitates both parties to comply with the agreement. However, in the case of a peace agreement between Israel and Palestine, the fact shows the opposite. This has been due to the violation of the agreement by Israel between 1993-2007. Employing a normative-empirical approach, this study analyzes Israel’s violations against the Israeli-Palestinian peace agreement between 1993-2007, which contradict the principle of Pacta Sunt Servanda and the Siyasah Kharijiyya concept. This study reveals that Israel neglected the principle of Pacta Sunt Servanda in the peace agreement with Palestine. The absence of sanctions for Israel shows that the International Court of Justice has not been able to provide legal certainty for the Palestinian people. Implementasi asas Pacta Sunt Servanda  mutlak ada dalam setiap perjanjian internasional.  Asas ini sebagai landasan bahwa perjanjian tersebut wajib dipatuhi kedua belah pihak. Namun,  faktanya sangatlah bertolak belakang dengan yang diharapkan. Pada perjanjian damai Israel-Palestina,  banyak  pelanggaran yang dilakukan Israel pada perjanjian damai tersebut terutama kurun waktu 1993–2007. Pada masa itu, telah terjadi rangkaian perjanjian damai antara Israel-Palestina, namun pihak Israel yang selalu melanggar hasil kesepakatan perjanjian tersebut. Dengan pendekatan normatif-empiris, penelitian ini menganalisis pelanggaran Israel pada perjanjian damai Israel-palestina dalam kurun waktu tahun 1993– 2007. Pelanggaran tersebut bertentangan dengan asas Pacta Sunt Servanda dalam konsep perjanjian internasional dan Siyasah Kharijiyyah pada kajian Fikih Siyasah. Temuan penelitian menjelaskan bahwa Israel tidak mengindahkan asas Pacta Sunt Servanda dalam melakukan perjanjian damai dengan Palestina. Tidak ada sanksi terhadap  Israel memperlihatkan bahwa Mahkamah Internasional belum dapat memberikan kepastian hukum terhadap rakyat Palestina.  

The International Court of Justice: Its Role in Contemporary International Relations

1960 ◽  
Vol 14 (2) ◽  
pp. 261-276 ◽  
Author(s):  
Max Sørensen
Keyword(s):  
International Relations ◽  
League Of Nations ◽  
International Justice ◽  
International Organization ◽  
International Court Of Justice ◽  
Organic Part ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Set Up

In his concluding volume in the Carnegie Endowment's series of National Studies on International Organization, Professor Maclver observes that the International Court of Justice, as set up in 1945, was not so much a new institution as a new promise. It was closely modelled on its predecessor, the Permanent Court of International Justice, and Article 92 of the UN Charter expressly recognized the continuity with the past in affirming that the Statute of the new Court was based upon chat of the old one. The promise lay in the fact that the new Court was declared to be “the principal judicial organ of the United Nations” and thus called upon to play a more significant role than the old Court, which had never been an organic part of the League of Nations structure. Professor Maclver concludes, however, that the promise remains in important respects unfulfilled.

The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms

1976 ◽  
Vol 70 (1) ◽  
pp. 28-40 ◽  
Author(s):  
Richard B. Lillich ◽  
G. Edward White
Keyword(s):  
Practical Interest ◽  
Deliberative Process ◽  
International Court Of Justice ◽  
Limited Availability ◽  
Decisionmaking Process ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Public Record

The deliberative process by which the International Court of Justice (ICJ) reaches its decisions, although a matter of public record,1 is largely ignored today even by specialists.2 Several reasons account for this situation: the limited availability and somewhat opaque nature of the Court’s published procedures;3 the lack of practical interest in this aspect of the Court’s task;4 the reluctance of judges in the past to discuss, at least in print, any aspect of the Court’s decisionmaking process;5 and the impression held in some quarters that this process is something of a mystery.6 Consequently, few students of the Court have more than a hazy impression of how it makes its decisions.7

Human Rights in the International Court of Justice

2007 ◽  
Vol 20 (4) ◽  
pp. 745-751 ◽  
Author(s):  
ROSALYN HIGGINS
Keyword(s):  
Human Rights ◽  
Self Determination ◽  
International Court Of Justice ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Human Rights Treaties ◽  
The Icj ◽  
Occupied Territories ◽  
Rights Issues

In this speech delivered at the conference honouring Professor Dugard, President Higgins discusses various human rights issues that have come before the International Court of Justice, including self-determination, reservations to human rights treaties, the application of human rights instruments to occupied territories, and allegations of genocide by one state against another. President Higgins notes that in the past few decades the ICJ has been joined by regional human rights courts, commissions and treaty monitoring bodies. Similar human rights claims are surfacing in these diverse fora, but the acknowledged expertise of these specialist bodies and the desire to avoid fragmentation provide an impetus for all concerned to seek common solutions on evolving points of law.

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