"The Legal Basis for the Exercise of Jurisdiction by the International Criminal Court and the Preparatory Work of the Rome Statute (VII/Final)," Journal of International Relations and Comparative Culture, Vol. 19, No. 2 (March 2021), pp. 99-107.

The aim of this paper is to discuss the legal basis for the ICC’s exercise of jurisdiction while viewing this topic as one of the issues demonstrating the current status of general international law concerning the creation of obligations for non-party states. The results of the examination of the preparatory work of the Statute can be summarised as follows.Firstly, it was generally accepted that, under the current law of treaties, the proposed Statute could not create obligations for non-party states without their consent. Moreover, Article 12 of the Statute cannot be interpreted to provide for an obligation of non-accepting states. Therefore, it can be said that, when adopting the Statute, states were not trying to create an obligation for non-party states without their consent, and that it is not appropriate to criticise Article 12 on the basis of the rule of the law of treaties whereby a treaty does not create obligations for a non-party state without its consent.Secondly, with regard to the legal basis for the ICC’s exercise of jurisdiction in the cases of the state parties’ referral or Prosecutor’s initiative, it must be conceded that most states accepted the last-minute compromise on the state-consent requirements for the proposed ICC’s exercise of jurisdiction without discussing its legal basis adequately. Article 12 of the Statute, which originates from Article 8 of the Korean Proposal, can be interpreted to provide for the obligation of accepting states to acquiesce in the ICC’s exercise of proper jurisdiction which is not characterised as the exercise of a kind of state jurisdiction through the ICC. However, states barely addressed the related issue of whose rights could be violated by the proposed ICC’s exercise of jurisdiction. It can be noted in this regard that, because Article 12 does not require the consent of particular states as an essential precondition to the ICC’s exercise of jurisdiction, unless there is no state whose right could be violated thereby it seems impossible for the ICC to avoid the violation of a right altogether.Thirdly, with regard to the legal basis for the ICC’s exercise of jurisdiction in the cases of the Security Council’s referral, the Statute’s relevant provision, which originates from Article 23, paragraph 1, of the ILC’s final Draft Statute, is based on the idea that a decision of the Council under Chapter VII of the UN Charter can serve as a substitute for or replace the acceptance by states in accordance with Article 12 of the Statute. Accordingly, it can be argued that, unless there is evidence to the contrary, the resolutions adopted by the Council when it refers situations to the Prosecutor are interpreted to provide for the obligation of (at least) UN member states to acquiesce in the ICC’s exercise of proper jurisdiction. However, it should be added that neither states nor the members of the ILC reached agreement on the other three issues relating to the legality of the ICC’s exercise of jurisdiction: 1) whose rights could be violated thereby; 2) whether referrals by the Council conform with Chapter VII of the UN Charter; 3) whether or not it is possible to create obligations for non-members of the UN.Lastly, it seems impossible for the US to become a persistent objector to a potential rule of customary international law which would oblige states to acquiesce in the ICC’s exercise of jurisdiction, because the US admitted, towards the end of the Rome Conference, the possibility of the proposed ICC exercising its jurisdiction over some nationals of non-party states without their acceptance or a UN Security Council resolution with binding force.In contrast to the above-mentioned results of the author’s examination, many of the scholars who have written on the topic of the legal basis for the ICC’s exercise of jurisdiction regard (part of) it as the exercise, through the ICC, of jurisdiction which accepting states originally possess. Therefore, it can be said that what theoretical framework the ICC itself would provide on this topic is a very interesting question, which will be dealt with in the author’s next paper.

Draft Statute of the Multilateral Investment Court

The EU is aiming for a Multilateral Investment Court (MIC) to replace the existing investment arbitration system. Based on the current debates in UNCITRAL and other fora this Draft Statute of an MIC demonstrates that it is possible to have a new system of dispute settlement. For the first time, a complete draft agreement is presented for the design of such an MIC as a new international organization, implementing strict rule of law-requirements for dispute settlement. Besides rule of law-considerations, cornerstones are reduced costs, a permanent bench of judges with an appellate system, transparency, more consistency in case law as well as the effective enforceability of MIC decisions.

Application of the Polluter-pays Principle in Russian Legislation on Climate Change: Problems and Prospects

The Russian Federation is the fourth largest producer of greenhouse gas emissions in the world. The article is a study of how these emissions are monitored in Russia. In the framework of the polluter-pays principle (ppp), the current Russian legislation on pollutants provides for payment only for methane emissions. No payments are established for any of the other greenhouse gases. The authors conclude that, at present, Russian legislation does not regulate action against climate change, although many political and legal documents are being adopted aimed at adapting to the effects of climate change. A draft statute “On State Regulation of Greenhouse Gas Emissions and Absorption and on Amendments to Certain Legislative Acts of the Russian Federation” is analysed. Despite the fact that this draft law is strongly opposed by the affected industries, the authors conclude that the adoption of this law and the creation of a targeted national climate fund will contribute to the implementation of the ppp in Russia for the purpose of combating climate change.

CASSATION PROCEEDINGS UNDER THE DRAFT STATUTE OF CIVIL PROCEDURE OF 1863

Introduction. The creation of a system of cassation courts of general jurisdiction organized on an extraterritorial basis and other significant changes in modern cassation proceedings quite obviously mediate a new wave of scientific interest in the history of the development of a system for verifying judicial acts in the domestic tradition of civil procedure. In this regard, the experience in carrying out the Judicial Reform of 1864, in particular, enforcement of the Statute of Civil Procedure regularized the cassation institution for the first time, became relevant. At the same time, despite the fact that many modern scientific works are devoted to the study of the Statute of Civil Procedure of 1864 itself (including possibilities for appealing court decisions provided for thereby), the studies of foregoing drafts also stay relevant. The draft of 1863 is one such example. This article is devoted to the analysis of this draft in accordance with the declared topic. Purpose. The purpose of this study is to describe the draft Statute of Civil Procedure of 1863 in the context of its provisions defining the content of cassation institution. Methods. In the framework of the study, mainly historical-legal and comparative-legal methods were used. Results. The significance of the draft Statute of Civil Procedure of 1863, in the context of establishment and development of cassation institution in the civil procedure of the Russian Empire, was manifested, first of all, in a sufficiently clear consolidation in it of the very grounds for cassation of decisions. Its definitions are very similar to its provisions have been already consolidated in the Statute of Civil Procedure of 1864. At the same time, existing in that period distinction between terms “cassation” and “revision” promoted the consolidation of two basic tasks of cassation proceedings in the provisions of the Statute of Civil Procedure of 1863: verifying of the final decisions for judicial errors with the purpose of their subsequent elimination and ensuring uniform application and interpretation of the law. Conclusion. The draft Statute of Civil Procedure of 1863, having incorporated the ideas of many subsequent legislative works into itself, became some sort of provisional result of development of the necessity of cassation court in the Russian Empire of the 1800s – 1860s. At the same time, of course, the work on drafting the Statute of Civil Procedure did not end there, wherefore the draft was actively discussed and improved, and its main provisions regarding the regulation of the cassation proceedings formed the basis of the Statute of November 20, 1864.

Remarks by Judge Stephen Schwebel

It should be recalled that the Committee of Jurists that drew up the draft Statute of the Permanent Court of International Justice provided for general compulsory jurisdiction. But when that draft Statute was laid before the Council of the League, the Great Powers of the day were unwilling to accept compulsory jurisdiction, and the optional clause came forth as an inadequate substitute. There were high hopes for its expansion, and it did expand over the years. By the outbreak of World War II, there were more states adhering to the compulsory jurisdiction of the Court than there are now. In the 1930s, President Roosevelt made a strong effort to have the United States ratify the Statute of the Court, which was a separate instrument from the League of Nations Covenant. He got a majority in the Senate, but not a two-thirds majority.