Pub Date : 2023-08-22DOI: 10.1163/18757413_02601005
Sondre Torp Helmersen
This article examines the application of teachings by the International Court of Justice between 2016 and 2022. The Court did not cite teachings in its majority opinions during this period. It did cite works from the International Law Commission, which suggests that these are considered different from teachings and possibly have more weight. Judges cited teachings in their individual opinions. Judge Cançado Trindade stands out as a judge with a particularly high citation rate. Teachings played a wide variety of functions in individual opinions, from the classical functions of aiding the interpretation of a treaty and the ascertainment of a rule of customary international law, to a range of other specialized functions such as the interpretation of other texts, in particular judicial decisions, methodological and historical points, and showing the purpose of a rule of instrument, in addition to providing reflections on the role of the international judiciary itself. The article also examines the demographics of the most-cited writers, finding that most of them are men from Western States. The article compares the judges’ practice with findings from prior to 2016 and other international courts and tribunals.
本文考察了国际法院在2016年至2022年期间的教学适用情况。在此期间，最高法院在其多数意见中没有引用教义。它确实引用了国际法委员会(International Law Commission)的著作，该委员会认为，这些著作与教义不同，可能更有分量。法官们在各自的意见中引用教义。坎帕拉多·特林达德法官以其特别高的引用率脱颖而出。教义在个别意见中发挥了各种各样的功能，从协助解释条约和确定习惯国际法规则的经典功能，到一系列其他专门功能，例如解释其他文本，特别是司法决定、方法和历史要点，以及显示文书规则的目的，此外还提供对国际司法机构本身作用的思考。这篇文章还研究了被引用最多的作家的人口统计数据，发现他们中的大多数是来自西部各州的男性。这篇文章将法官的做法与2016年之前以及其他国际法院和法庭的裁决进行了比较。
{"title":"The Application of Teachings by the International Court of Justice, 2016–2022","authors":"Sondre Torp Helmersen","doi":"10.1163/18757413_02601005","DOIUrl":"https://doi.org/10.1163/18757413_02601005","url":null,"abstract":"This article examines the application of teachings by the International Court of Justice between 2016 and 2022. The Court did not cite teachings in its majority opinions during this period. It did cite works from the International Law Commission, which suggests that these are considered different from teachings and possibly have more weight. Judges cited teachings in their individual opinions. Judge Cançado Trindade stands out as a judge with a particularly high citation rate. Teachings played a wide variety of functions in individual opinions, from the classical functions of aiding the interpretation of a treaty and the ascertainment of a rule of customary international law, to a range of other specialized functions such as the interpretation of other texts, in particular judicial decisions, methodological and historical points, and showing the purpose of a rule of instrument, in addition to providing reflections on the role of the international judiciary itself. The article also examines the demographics of the most-cited writers, finding that most of them are men from Western States. The article compares the judges’ practice with findings from prior to 2016 and other international courts and tribunals.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122538256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601009
M. Wood
In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.
{"title":"The ILC’s First Reading Draft Articles on ‘Immunity of State Officials from Foreign Criminal Jurisdiction’ (2022)","authors":"M. Wood","doi":"10.1163/18757413_02601009","DOIUrl":"https://doi.org/10.1163/18757413_02601009","url":null,"abstract":"\u0000In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128258128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601004
David Hongler
Over the course of the past 75 years, the International Court of Justice (ICJ) has adjudicated a total of 17 territorial disputes, building a considerable body of case law along the way. While the Court has shed light on many legal issues concerning territorial sovereignty over the years, it has never clarified its approach to territorial disputes. Bridging the gap between a 2004 analysis by Brian Sumner, who identified a three-tiered hierarchical decision rule, and modern territorial doctrine, this study aims to provide an updated attempt at systematization of the Court’s approach in its case law concerning territorial disputes. Refining Sumner’s hierarchical decision rule, the findings – while overall congruent with the basic hierarchy identified in his work – suggest that the Court’s approach revolves around a hierarchy of three tiers of territorial titles (understood broadly as sources of the right to territory), namely, legal instruments, State succession and intangibility of boundaries, and independent effectivités. Equity infra legem is used as a last resort tool for interpretation of these titles, where they themselves yield no clear result. Another source of the right to territory, unilateral conduct constituting acquiescence and/or estoppel, is relied on outside of this hierarchy, often to support a decision based on another title. A review of the entirety of the Court’s case law reveals a relatively consistent yet multi-layered approach to territorial disputes.
{"title":"The International Court of Justice and Territorial Disputes: an Updated Systematization","authors":"David Hongler","doi":"10.1163/18757413_02601004","DOIUrl":"https://doi.org/10.1163/18757413_02601004","url":null,"abstract":"\u0000Over the course of the past 75 years, the International Court of Justice (ICJ) has adjudicated a total of 17 territorial disputes, building a considerable body of case law along the way. While the Court has shed light on many legal issues concerning territorial sovereignty over the years, it has never clarified its approach to territorial disputes. Bridging the gap between a 2004 analysis by Brian Sumner, who identified a three-tiered hierarchical decision rule, and modern territorial doctrine, this study aims to provide an updated attempt at systematization of the Court’s approach in its case law concerning territorial disputes. Refining Sumner’s hierarchical decision rule, the findings – while overall congruent with the basic hierarchy identified in his work – suggest that the Court’s approach revolves around a hierarchy of three tiers of territorial titles (understood broadly as sources of the right to territory), namely, legal instruments, State succession and intangibility of boundaries, and independent effectivités. Equity infra legem is used as a last resort tool for interpretation of these titles, where they themselves yield no clear result. Another source of the right to territory, unilateral conduct constituting acquiescence and/or estoppel, is relied on outside of this hierarchy, often to support a decision based on another title. A review of the entirety of the Court’s case law reveals a relatively consistent yet multi-layered approach to territorial disputes.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124315065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601007
K. Nakajima
This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice (‘the Court’), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied.
{"title":"Fact-Finding by Trade-off: Questions of Evidence and Its Interactions with Valuation in Compensation Cases before the International Court of Justice","authors":"K. Nakajima","doi":"10.1163/18757413_02601007","DOIUrl":"https://doi.org/10.1163/18757413_02601007","url":null,"abstract":"\u0000This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice (‘the Court’), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130187670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601008
Amanda Bills
The International Court of Justice has consistently required a stricter standard of proof for ‘charges of exceptional gravity’. The Bosnia Genocide and Croatia Genocide cases saw the Court require the high standard of ‘fully conclusive’ evidence across all elements of the allegations of genocide. Despite the difficulties associated with obtaining the necessary evidence of the intent of the perpetrators to destroy, in whole or in part, a protected group to establish the commission of genocide, the Court allowed little flexibility in the application of that standard in what may have been a departure from its previous cases relating to grave charges. The Court emphasized the gravity of the allegations and the high stigmatization attached to a finding of responsibility for genocide, suggesting a strong emphasis on the consequences of a finding of responsibility for the wrongdoing State over other interests that may also have been present in the proceedings. The Court has yet to explain the rationale for the high standard of proof applied to charges of exceptional gravity in international judicial proceedings, or why it required a particularly stringent standard of proof in the Genocide cases. This raises questions about the Court’s approaches to the standard of proof and the process by which it balances different interests in judicial proceedings. As States seek out the Court’s jurisdiction for serious breaches of international law – including, for example, the pending Rohingya Genocide case – the Court’s strict approach to the standard of proof risks imposing a high bar to the enforcement of these obligations.
{"title":"Revisiting the Standard of Proof for Charges of Exceptional Gravity before the International Court of Justice","authors":"Amanda Bills","doi":"10.1163/18757413_02601008","DOIUrl":"https://doi.org/10.1163/18757413_02601008","url":null,"abstract":"\u0000The International Court of Justice has consistently required a stricter standard of proof for ‘charges of exceptional gravity’. The Bosnia Genocide and Croatia Genocide cases saw the Court require the high standard of ‘fully conclusive’ evidence across all elements of the allegations of genocide. Despite the difficulties associated with obtaining the necessary evidence of the intent of the perpetrators to destroy, in whole or in part, a protected group to establish the commission of genocide, the Court allowed little flexibility in the application of that standard in what may have been a departure from its previous cases relating to grave charges. The Court emphasized the gravity of the allegations and the high stigmatization attached to a finding of responsibility for genocide, suggesting a strong emphasis on the consequences of a finding of responsibility for the wrongdoing State over other interests that may also have been present in the proceedings. The Court has yet to explain the rationale for the high standard of proof applied to charges of exceptional gravity in international judicial proceedings, or why it required a particularly stringent standard of proof in the Genocide cases. This raises questions about the Court’s approaches to the standard of proof and the process by which it balances different interests in judicial proceedings. As States seek out the Court’s jurisdiction for serious breaches of international law – including, for example, the pending Rohingya Genocide case – the Court’s strict approach to the standard of proof risks imposing a high bar to the enforcement of these obligations.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123082772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601006
Zuzanna Godzimirska
Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.
{"title":"The Legitimacy of the International Court of Justice from the Vantage Point of UN Members","authors":"Zuzanna Godzimirska","doi":"10.1163/18757413_02601006","DOIUrl":"https://doi.org/10.1163/18757413_02601006","url":null,"abstract":"\u0000Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123418554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-22DOI: 10.1163/18757413_02601003
Paula Wojcikiewicz Almeida, Giulia Tavares Romay
Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.
{"title":"Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice","authors":"Paula Wojcikiewicz Almeida, Giulia Tavares Romay","doi":"10.1163/18757413_02601003","DOIUrl":"https://doi.org/10.1163/18757413_02601003","url":null,"abstract":"\u0000Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132927397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-23DOI: 10.1163/18757413_02501003
Gabriela Argüello
On the occasion of the 25th anniversary of The Max Planck Yearbook of United Nations Law, this article revisits the International Maritime Organization’s (IMO) contribution to regime interaction in the fields of air pollution, climate change, ship waste management and rescue of migrants at sea. Particular attention is given to cooperation arrangements between international organizations and how their day-to-day activities contribute to or hinder legal development among legal regimes. These interactions are studied through the theoretical lenses of ‘relational interactions’ and ‘regime complexes’. The paper focuses on iterative and forward-looking cooperation arrangements and the characteristics of such interactions ranging from collaborative to conflictive. I illustrate how the IMO has made substantial contributions (beyond maritime law) to the law of the sea and international environmental law, but the contribution to refugee law has been more modest. While the IMO will continue to engage in regime interaction, legal scholarship should pay closer attention to institutional congestion in international law. Since the international legal system has no pre-established hierarchy, governance is horizontal and may be prone to conflicts. It is time to devise mechanisms that allow relational interactions while avoiding legal fragmentation and forum shifting risks.
{"title":"The International Maritime Organization’s Contribution to Regime Interaction: Past, Present, and Future","authors":"Gabriela Argüello","doi":"10.1163/18757413_02501003","DOIUrl":"https://doi.org/10.1163/18757413_02501003","url":null,"abstract":"On the occasion of the 25th anniversary of The Max Planck Yearbook of United Nations Law, this article revisits the International Maritime Organization’s (IMO) contribution to regime interaction in the fields of air pollution, climate change, ship waste management and rescue of migrants at sea. Particular attention is given to cooperation arrangements between international organizations and how their day-to-day activities contribute to or hinder legal development among legal regimes. These interactions are studied through the theoretical lenses of ‘relational interactions’ and ‘regime complexes’. The paper focuses on iterative and forward-looking cooperation arrangements and the characteristics of such interactions ranging from collaborative to conflictive. I illustrate how the IMO has made substantial contributions (beyond maritime law) to the law of the sea and international environmental law, but the contribution to refugee law has been more modest. While the IMO will continue to engage in regime interaction, legal scholarship should pay closer attention to institutional congestion in international law. Since the international legal system has no pre-established hierarchy, governance is horizontal and may be prone to conflicts. It is time to devise mechanisms that allow relational interactions while avoiding legal fragmentation and forum shifting risks.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129855850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-23DOI: 10.1163/18757413_02501006
Pierre M. Dupuy
The question of whether the Charter of the United Nations can be considered as the constitution of the international legal order was first examined by the present author here 25 years ago. At that time, it was noted that this issue raises a number of conceptual and theoretical problems that need to be briefly recalled in this paper. 25 years later, however, the question is whether the practical behaviour of States and the actual impact of their references to the Charter as a “constitution” confirm the validity of this thesis, which, it should be noted, originated in doctrine and was first put forward by scholars from federal States, including, in the first instance, Germany and the United States. In accordance with the wishes of the editors of this yearbook, the present article was written before the outbreak of Russia’s aggression against Ukraine on 24 February 2022. As a consequence, the examination of State practice both in terms of the authority conferred on the UN Security Council (organic test) and the norms it was able to adopt during that period as well as the way in which the International Court of Justice itself dealt with the Charter (normative test) led to a very nuanced conclusion as to the relevance of the constitutionalist theory in positive law. They also raise the issue of the criteria for appreciating what is a « good theory » one of them being for sure that is should not lead to any kind of dogmatism. Whatever the case, the very broad condemnation of the Russian aggression in Ukraine from the outset, notably by the United Nations General Assembly meeting in special session, together with the reactions of several other international bodies as well as heads of State or Governments, make it possible to note that the United Nations Charter is indeed still considered, at least by more than three thirds of the members of the United Nations, as the cornerstone of the international legal order. Does this necessarily mean that this instrument should be qualified as a “constitution” in the technical sense that some domestic public laws and political traditions mean it? The question still deserves to be asked. Here again, it very much remains an issue of definition; but the term is probably less important than the actual reality.
{"title":"The Constitutional Dimension of the UN Charter Revisited: Almost One Quarter of a Century Later","authors":"Pierre M. Dupuy","doi":"10.1163/18757413_02501006","DOIUrl":"https://doi.org/10.1163/18757413_02501006","url":null,"abstract":"The question of whether the Charter of the United Nations can be considered as the constitution of the international legal order was first examined by the present author here 25 years ago. At that time, it was noted that this issue raises a number of conceptual and theoretical problems that need to be briefly recalled in this paper. 25 years later, however, the question is whether the practical behaviour of States and the actual impact of their references to the Charter as a “constitution” confirm the validity of this thesis, which, it should be noted, originated in doctrine and was first put forward by scholars from federal States, including, in the first instance, Germany and the United States.\u0000 In accordance with the wishes of the editors of this yearbook, the present article was written before the outbreak of Russia’s aggression against Ukraine on 24 February 2022. As a consequence, the examination of State practice both in terms of the authority conferred on the UN Security Council (organic test) and the norms it was able to adopt during that period as well as the way in which the International Court of Justice itself dealt with the Charter (normative test) led to a very nuanced conclusion as to the relevance of the constitutionalist theory in positive law. They also raise the issue of the criteria for appreciating what is a « good theory » one of them being for sure that is should not lead to any kind of dogmatism.\u0000 Whatever the case, the very broad condemnation of the Russian aggression in Ukraine from the outset, notably by the United Nations General Assembly meeting in special session, together with the reactions of several other international bodies as well as heads of State or Governments, make it possible to note that the United Nations Charter is indeed still considered, at least by more than three thirds of the members of the United Nations, as the cornerstone of the international legal order. Does this necessarily mean that this instrument should be qualified as a “constitution” in the technical sense that some domestic public laws and political traditions mean it? The question still deserves to be asked. Here again, it very much remains an issue of definition; but the term is probably less important than the actual reality.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128048908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-23DOI: 10.1163/18757413_02501021
R. Essawy
No one is safe until everyone is safe. Although this phrase has received wide consensus during COVID-19, this pandemic has witnessed a surge in health nationalism. States have imposed export restrictions on COVID-19-related medical supplies and vaccines seeking to preserve them for their own populations. This has adversely affected the availability of those necessary tools in other countries undermining their efforts in fighting the pandemic. Thus, it could be argued that States have violated their obligation to cooperate under Art. 44 of the 2005 World Health Organisation (WHO) International Health Regulations (IHR). Nevertheless, States’ export restrictions have been legally justified under the General Agreement on Trade and Tariffs (GATT). Does this mean that the duty to cooperate is an empty obligation that fails to counter health nationalism? It is the purpose of this paper to demonstrate otherwise using the principle of lex specialis derogat legi generali. Under this principle, the duty to cooperate in pandemic response under Art. 44 of the IHR prevails over States’ rights under gatt, rendering health nationalism legally unjustified.
{"title":"Closing the Doors on Health Nationalism: The Non-emptiness of the Legal Duty to Cooperate in Pandemic Response under Lex Specialis","authors":"R. Essawy","doi":"10.1163/18757413_02501021","DOIUrl":"https://doi.org/10.1163/18757413_02501021","url":null,"abstract":"No one is safe until everyone is safe. Although this phrase has received wide consensus during COVID-19, this pandemic has witnessed a surge in health nationalism. States have imposed export restrictions on COVID-19-related medical supplies and vaccines seeking to preserve them for their own populations. This has adversely affected the availability of those necessary tools in other countries undermining their efforts in fighting the pandemic. Thus, it could be argued that States have violated their obligation to cooperate under Art. 44 of the 2005 World Health Organisation (WHO) International Health Regulations (IHR). Nevertheless, States’ export restrictions have been legally justified under the General Agreement on Trade and Tariffs (GATT). Does this mean that the duty to cooperate is an empty obligation that fails to counter health nationalism? It is the purpose of this paper to demonstrate otherwise using the principle of lex specialis derogat legi generali. Under this principle, the duty to cooperate in pandemic response under Art. 44 of the IHR prevails over States’ rights under gatt, rendering health nationalism legally unjustified.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127654339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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