Invoking International Environmental Norms Through Treaty Interpretation

This article analyses the way in which international tribunals considering treaty- based disputes incorporate extraneous environmental principles through the use of interpretative mechanisms. Increasingly prominent in the international sphere, this approach allows States bringing claims under historical treaties to adopt and enforce contemporary understandings of environmental obligations. This article pursues an extensive survey of cases exhibiting this process, focusing on the interpretative techniques used; the extent to which the tribunals allowed for environmental arguments; and the basis, and use, of environmental norms. These results facilitate a comparative analysis, which concludes that tribunals’ choices regarding each of these features ultimately depends on the underlying treaty’s relationship with intertemporal law. This article thus provides a guide as to how States may effectively enforce environmental obligations, even absent explicit environmental enforcement mechanisms.

RECOVERY OF DAMAGE CAUSED BY LATE PERFORMANCE OF OBLIGATIONS RESULTING FROM INTERNATIONAL COMMERCIAL CONTRACTS

This article analyses the different approaches in comparative law, arbitral practice and in doctrine regarding the institution of interest on late performance (default interest) allocated to compensate for the damage arising from the late performance of contractual obligations, known by most legal systems and instruments of uniform law. Despite the trend of harmonization of regulations in this area, national legislations enshrine different solutions regarding some aspects of this institution. Consequently, the national and international tribunals give various decisions, depending on the legal regulations and the international commercial customs that they consider applicable in the case, the jurisprudence in this field being different.

How is the line drawn?

This chapter presents distinction as a performance and conveys the dynamism of everyday distinction practices. Distinction takes on an explicit visual life in the Kinetic realm: humanitarian actors deploy signs and symbols, and they carry themselves in deliberate ways to show they are distinct. Everything in these practices is a matter of degree and subtle gradation. Other international actors emerge here as potential sources of contamination, including actors who would be entitled to civilian protection in IHL. Humanitarian actors embark on dogged attempts to assert distinction from these other actors, but distinction is always already compromised. While the possible futility of their distinction project leads some humanitarian actors to rally behind distinction even more strongly, other humanitarians balance distinction with other pressing priorities. In the civil–military training spaces, international military and peacekeeping actors voice incredulity at the logic of humanitarian distinction practices. From the perspective of these other actors, humanitarians are behaving erratically and prevaricating. The Intellectual realm focuses on the civilian concept, locating a continuum of ‘civilianness’ in international law. The discussion examines qualities that have historically been associated with civilianness—such as harmlessness, innocence, and non-participation in fighting—and highlights the shifting relevance of an armed/unarmed marker. Engaging with the adjudication of crimes against humanity cases in the Hague, it is shown that even in international tribunals civilianness might be a matter of degree. The chapter closes by introducing three unfamiliar figures: the ‘civilian plus’, ‘mere civilian’, and ‘civilian minus’.

Hierarchy between Domestic and International Tribunals: Utopia or Near Future?

e l e stablecimiento d e u na j erarquía f ormal e ntre t ribunalesinternos e internacionales ha sido un “tabú” para los estudiosos delderecho internacional y los actores de los sistemas jurídicos interno einternacional. No obstante, es posible y deseable pensar las relacionesentre órganos judiciales internos e internacionales en términos jerárquicos.La jerarquía permite la ejecución eficaz de las sentencias de los tribunalesque operan en un determinado orden jurídico y evita el surgimiento detodo tipo de conflictos entre dichas jurisdicciones. Adicionalmente, estarefuerza la uniformidad y la certeza en la interpretación y aplicación de lasmismas normas y principios jurídicos por parte de múltiples y distintostribunales. Por último, la jerarquía garantiza la igualdad ante la ley delos intervinientes en los procedimientos contenciosos ante los órganosjudiciales. Tanto los tribunales internos como los internacionales ya hanutilizado mecanismos jerárquicos para regular sus relaciones. En consecuencia,puede comprobarse que el establecimiento de jerarquía entretribunales internos e internacionales no es utópica,

THE "HAGUE" MODIFICATION OF THE INTERNATIONAL CRIME CONCEPT

The article analyses the development of the concept of international crime in the "Hague" period, which covers the last decades of the last century and is closely related to the establishment of ad hoc international tribunals in the former Yugoslavia and Rwanda. The article reveals the legal grounds for the establishment of these tribunals, the features of their activities, jurisdiction and principles of responsibility of persons who committed crimes in the former Yugoslavia and Rwanda. The establishment of international justice bodies by UN Security Council decisions has provoked a number of debates about their legitimacy, but it is undeniable that the activities of ad hoc international tribunals have contributed to the initiation of a new stage in the development of international criminal justice, further development of international criminal law, in particular in the development of the Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court. All types of tribunal jurisdictions are disclosed, but special attention is paid to the substantive and personal jurisdictions of tribunals, which became the basis for the theoretical justification of the "Hague" modification of international crime, as well as the practical implementation of this concept in tribunal decisions. It is shown that the categories of international crimes that constitute the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (serious violations of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity) and the categories of crimes defined in the Statute of the International Tribunal for Rwanda against humanity and violations of the Geneva Conventions) in the documents of the tribunals have been developed in comparison with the Nuremberg and post-Nuremberg periods. ~ 74 ~ ВІСНИК Київського національного університету імені Тараса Шевченка ISSN 1728-3817 It is shown that the substantive jurisdiction of the ICTY and the ICC does not coincide with the provisions of the Nuremberg and Tokyo tribunals. The differences relate to the list of categories of crimes; parallel jurisdiction of international ad hoc tribunals and national courts; extending the competence of ad hoc tribunals to cases of crimes committed both during wars between states and during internal armed conflict, etc. The content of the categories of crimes, their composition, the subjects of responsibility have been clarified. In particular, the characteristic features of the crime of genocide and crimes against humanity are identified; the conditions, elements and subjects for the recognition of their qualifications are indicated. The author pays attention to the principles of personal jurisdiction, shows that in the decisions of international tribunals ad hoc has developed the principle of individual responsibility for international crimes that constitute substantive jurisdiction. The application of the principle of universal jurisdiction in the activity of tribunals is revealed. The author concludes that the establishment of ad hoc international criminal tribunals and their activities has contributed to the development of the concept of international crime and the separation of a special "Hague" modification. Keywords: international crime, tribunal, "Hague" modification, international justice, jurisdiction, criminal liability

Does Consent Engender Compliance? Insights from Empirical Research on International Tribunals

Zachary Mollengarden and Noam Zamir base their conclusion that the Monetary Gold principle should be abandoned on both legal considerations and policy implications. These two elements, however, do not receive equal attention in the article. This essay unpacks the authors’ dismissal of the idea that, by subjecting jurisdiction to consent, the principle makes compliance with awards from the ICJ more likely. Based on the notion that judicial decisions should be understood as embedded within wider political bargains, I contend that while consent might be indicative of states’ willingness to abide by a judicial decision, what ultimately matters for changing state policy towards compliance is the set of incentives that states face in the context of these wider political bargains. Thus, the essay argues, in line with Mollengarden and Zamir, that abandoning the Monetary Gold principle need not make the Court less effective. However, it will not necessarily make it more impactful either. Beyond Monetary Gold and in relation to its role in world politics more broadly, the Court's impact rests, ultimately, on how political actors––including the ICJ itself––mobilize rulings strategically.