scholarly journals The resolution of international watercourse disputes: how should states approach the matter?

2021 ◽  
Author(s):  
◽  
Alice Chote
Keyword(s):  
Dispute Resolution ◽  
Early Stage ◽  
International Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Alternative Means ◽  
United Nations Convention ◽  
Fact Finding ◽  
Investigative Process

<p>Disputes concerning international watercourses have been resolved in a variety of ways in the past. This paper builds upon the dispute resolution framework put forward in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses and state practice to develop a dispute resolution framework which will bring more efficient results for riparian states. This process emphasises the important role that fact finding can have in this context. Using this investigative process at an early stage in the dispute resolution process helps to reduce the areas of conflict between the states and provides a platform to encourage negotiations. The framework outlined also allows for recourse to negotiations, and the International Court of Justice (ICJ) or arbitration if a resolution cannot be found. Recourse to the ICJ and arbitral tribunals has been left to the final stage of the framework to reflect state practice in the area. If this style of dispute resolution framework is adopted by states it should allow for disputes to be resolved efficiently. In turn this is likely to increase the awareness and support for fact finding as an alternative means of dispute resolution in international relations more broadly.</p>

scholarly journals The resolution of international watercourse disputes: how should states approach the matter?

2021 ◽  
Author(s):  
◽  
Alice Chote
Keyword(s):  
Dispute Resolution ◽  
Early Stage ◽  
International Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Alternative Means ◽  
United Nations Convention ◽  
Fact Finding ◽  
Investigative Process

<p>Disputes concerning international watercourses have been resolved in a variety of ways in the past. This paper builds upon the dispute resolution framework put forward in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses and state practice to develop a dispute resolution framework which will bring more efficient results for riparian states. This process emphasises the important role that fact finding can have in this context. Using this investigative process at an early stage in the dispute resolution process helps to reduce the areas of conflict between the states and provides a platform to encourage negotiations. The framework outlined also allows for recourse to negotiations, and the International Court of Justice (ICJ) or arbitration if a resolution cannot be found. Recourse to the ICJ and arbitral tribunals has been left to the final stage of the framework to reflect state practice in the area. If this style of dispute resolution framework is adopted by states it should allow for disputes to be resolved efficiently. In turn this is likely to increase the awareness and support for fact finding as an alternative means of dispute resolution in international relations more broadly.</p>

scholarly journals Re-assessing the Evidentiary Regime of the International Court of Justice: A Case for Codifying Its Discretion to Exclude Evidence

2015 ◽  
Vol 13 (1) ◽  
pp. 1-40
Author(s):  
Siyuan Chen
Keyword(s):  
Dispute Resolution ◽  
Early Stage ◽  
Common Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Courts ◽  
The Icj ◽  
International Tribunals ◽  
Fact Finding

AbstractLike many international tribunals, the International Court of Justice subscribes heavily to the principle of free admissibility of evidence. Neither its statute nor rules impose substantive restrictions on the admissibility of evidence, whether by way of exclusionary rules or an exclusionary discretion. Instead, the court’s practice has been to focus on evaluating and weighing the evidence after it has been admitted. There are certainly features of the ICJ that sets it apart from domestic courts and arguably justify such an approach: the ICJ is for settling disputes between sovereign states; it does not use a typical fact-finding system; its rules and practices reflect a mix of civil and common law traditions; and traditional exclusionary rules were not conceived with inter-state dispute resolution in mind. Yet for any judgment to have legitimacy, the evidential foundations must be strong and there should be a coherent and principled mechanism to sieve out problematic evidence at an early stage. Having this mechanism can also ensure that resources are not wasted and rights protected. Through an examination of the court’s rules and jurisprudence and the rules and practices of other international tribunals, this article makes the case for the codification of a provision that gives the ICJ an exclusionary discretion.

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.

scholarly journals Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia

2008 ◽  
Vol 21 (1) ◽  
pp. 95-112 ◽  
Author(s):  
RICHARD J. GOLDSTONE ◽  
REBECCA J. HAMILTON
Keyword(s):  
International Law ◽  
International Criminal Tribunal ◽  
International Court Of Justice ◽  
International Courts ◽  
Criminal Convictions ◽  
Legal Standard ◽  
International Court ◽  
The Icj ◽  
Fact Finding ◽  
Fragmentation Of International Law

AbstractThis article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

The International Court of Justice and the ‘Principle of Non-Use of Force’

2016 ◽  
Author(s):  
Clause Kreß
Keyword(s):  
International Law ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
International Court ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
Palestinian Territory ◽  
Legal Consequences

This chapter examines how the ICJ has interpreted UN Charter provisions on use of force in international relations. It outlines ICJ jurisprudence covering use of force by focusing on prohibition of use of force, exceptions to that prohibition, and prohibition of the threat of force. It cites cases from Corfu Channel (1949) to Nicaragua (1986); Legality of the Threat or Use of Nuclear Weapons (1996); Case Concerning Oil Platforms (2003) pitting Iran against the US; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004); and Case Concerning Armed Activities on the Territory of the Congo (2005). The chapter opines that the Court was remarkably successful in clarifying the law and influencing state practice according to its interpretations. Finally it suggests that the ICJ should avoid too much prohibitive rigour in clarifying the important remaining grey areas of the international law on the use of force.

Forum Prorogatum Returns to the International Court of Justice

2003 ◽  
Vol 16 (4) ◽  
pp. 701-713 ◽  
Author(s):  
SIENHO YEE
Keyword(s):  
Criminal Proceedings ◽  
Judicial Process ◽  
National Interests ◽  
International Court Of Justice ◽  
General Acceptance ◽  
Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

The International Court of Justice in Asia: Interpreting the Temple of Preah Vihear Case

2014 ◽  
Vol 5 (1) ◽  
pp. 1-6 ◽  
Author(s):  
Simon CHESTERMAN
Keyword(s):  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
General Preference ◽  
Preah Vihear ◽  
The Temple

This essay examines the 2013 Decision by the International Court of Justice interpreting its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand, situating the more recent decision in the context of the Court's evolving role in Asia. Only eight Asian states have accepted the compulsory jurisdiction of the Court; only nine have ever appeared before it. The narrowness of the recent decision is of interest in part because of the modest role it ascribes to judicial institutions, but also for what this modesty heralds for the Court's status in Asia. A key conclusion is that Asian states are likely to retain a general preference for bilateral resolution of disputes. For smaller disputes, however, especially those concerning subjects that cannot be divided or traded—such as a temple (and, as we shall see, an island)—the ICJ may play an important role.

Capacities and Inadequacies: A Look at the Two Separation Barrier Cases

2005 ◽  
Vol 38 (1-2) ◽  
pp. 230-246 ◽  
Author(s):  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Courts ◽  
Legal Proceedings ◽  
Analysis Process ◽  
International Court ◽  
Domestic Courts ◽  
Fact Finding ◽  
Israeli Supreme Court

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

scholarly journals Custom as a Source Under Article 21 of the Rome Statute

2021 ◽  
pp. 1-13
Author(s):  
Amit KUMAR
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Principle Of Legality

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

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