Does the Name of a Case Matter?

The arbitral award in The “Enrica Lexie” Incident (Italy v. India) brings to the fore the issue of assigning a name to a case. To contextualise India’s contention regarding the name, The “Enrica Lexie” Incident, in this article, I outline the law and practice regarding assigning names to cases by different international judicial bodies (ICJ, ITLOS, WTO and PCA). Examining India’s objection to the name, I argue that the name of the case does not capture the subject matter of the dispute accurately and emanates from the mainstream view of international law. The name prioritises an Italian flagged vessel, owned by a company engaged in international commerce and navigating under the protection of the Italian navy, over a fishing vessel owned by private individuals. The name reinforces a state-centric view of international law in which the victims of the incident do not picture.

No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes

The article argues that the Law of the Sea Convention’s (LOSC) dispute settlement system (DSS) is attuned only to certain types of disputes (bilateral) and does not allow for the effective enforcement of obligations erga omnes reflected in the Convention. Mechanisms established to address enforcement of communitarian norms specifically are scarce in international law and the traditional bilateral structure of adjudicatory dispute settlement circumscribes the ability of states to act as advocates of the international community to which obligations erga omnes are owed. The article identifies the obligations erga omnes reflected in the LOSC and assesses the extent to which its dispute settlement framework is suited to address their breach. It is submitted that some of the community interest obligations of the LOSC are “left behind” by the function of the system itself.

The “Struggle” to Dissolve the Kosovo Specialist Chambers in The Hague: Stuck between Constitutional Text and Mission to Pursue Justice

The Kosovo Specialist Chambers (KSC) manifest the first effort of the European Union to participate in an international criminal law project by running a hybrid criminal tribunal, vested with jurisdiction to investigate the Parliamentary Assembly of the Council of Europe’s Marty Report. The KSC is entrusted with a mandate originating in a number of legal instruments. A “termination clause” is also present in the Constitution of the Republic of Kosovo. The Specialist Constitutional Chamber has recently ruled on an amendment discreetly activating the termination of the KSC. The Chamber’s decision outlawing “the amendment” manifests an attempt to reinforce the constitutive nature of the EU’s proprietorship over the KSC, attaching to it an international personality detached from that of Kosovo. The decision contends that the “power to dissolve” the KSC is basically vested with the EU, and Kosovo’s internal law cannot affect that relationship unilaterally. The article argues that the strong adherence of the Chamber’s decision on fundamental rights is an attempt to expose the victim-rights-centered mission of the KSC, clearly leaning towards a legitimacy rather than a legalistic exercise. The article concludes that the decision will have ample effect on the EU’s responsibility over the KSC, the nature of the “power to dissolve”, and the KSC’s mission in the European fundamental rights landscape in general.

Procedural Developments at the International Criminal Court (2020)

The current column covers selected procedural developments at the International Criminal Court (ICC) in 2020. During this particular year, the Court has undertaken a multi-layered response to mitigate the effects of the COVID-19 pandemic on its operations. The ICC temporarily closed its headquarters building in The Hague from March to June 2020. Nevertheless, the Court successfully implemented, in a short timeframe, new remote working arrangements to ensure business continuity. These measures have allowed it to maintain a certain productivity. As a result, during the reporting period, the ICC delivered numerous decisions, taking such opportunities to clarify specific aspects of proceedings before the Court.

The International Court of Justice as a “Shortcut” to Identifying Custom

A frequently used shortcut to identifying rules of customary international law is to rely on statements by the International Court of Justice instead of conducting a more cumbersome investigation of state practice and opinio iuris. The purpose of this article is to consider when the Court’s statements align or may come to align with customary rules and, consequently, to what extent this shortcut is justified. Its value is in systematically exploring ideas that international lawyers may already have internalised; it may also help students of the subject to understand why reliance is placed on judicial decisions. Often, the Court simply elucidates pre-existing customary rules. But examples such as Factory at Chorzów, Fisheries, and Reservations to the Genocide Convention suggest that an additional or alternative justification for the shortcut may be stronger. This is the tendency of states to endorse or “ratify” statements by the Court through subsequent practice and opinio iuris.