Pub Date : 2023-09-01DOI: 10.1163/15718034-bja10102
Rahul Mohanty
This article approaches the International Court of Justice (ICJ) and its decisions from the lens of “deformalization”. It conceptualises “deformalization” not in a de-institutionalised sense, but as implying informality within the functioning of formal institutions. It posits that it may be useful to adopt this perspective to examine some of the actions of the ICJ, which may not be adequately explained from a purely formal standpoint. It examines various areas of deformalization within the ICJ, such as its approach towards evidence or provisional measures. It attempts to understand why and when deformalization is needed by the ICJ and concludes that the ICJ walks a tightrope between formal rules and informal application, in order to improve its effectiveness and legitimacy.
{"title":"Situating “Deformalization” within the International Court of Justice: Understanding Institutionalised Informality","authors":"Rahul Mohanty","doi":"10.1163/15718034-bja10102","DOIUrl":"https://doi.org/10.1163/15718034-bja10102","url":null,"abstract":"\u0000This article approaches the International Court of Justice (ICJ) and its decisions from the lens of “deformalization”. It conceptualises “deformalization” not in a de-institutionalised sense, but as implying informality within the functioning of formal institutions. It posits that it may be useful to adopt this perspective to examine some of the actions of the ICJ, which may not be adequately explained from a purely formal standpoint. It examines various areas of deformalization within the ICJ, such as its approach towards evidence or provisional measures. It attempts to understand why and when deformalization is needed by the ICJ and concludes that the ICJ walks a tightrope between formal rules and informal application, in order to improve its effectiveness and legitimacy.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87868110","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 : 2023-07-21DOI: 10.1163/15718034-bja10099
Brian E. McGarry
This article addresses the role of third States in public interest litigation – i.e., ongoing proceedings concerning interests which they share with the international community. It scrutinizes third-State intervention in inter-State cases through the prism of rules and principles arising in public interest litigation, and aims to clarify the limits of such participation. Having synthesized the relevant law and doctrine of intervention practice before the ICJ and other institutional courts, it considers the extent to which third-State interests find expression through Articles 62 and 63 of the ICJ Statute. It examines the invocation of international legal responsibility on the basis of obligations erga omnes and erga omnes partes, as well as the prospect of intervention on this basis. It then identifies and addresses jurisdictional and procedural questions arising in these and other instances of “public interest” intervention. It concludes by envisaging the prospective institutional development of multilateral participation in public interest litigation.
{"title":"Obligations Erga Omnes (Partes) and the Participation of Third States in Inter-State Litigation","authors":"Brian E. McGarry","doi":"10.1163/15718034-bja10099","DOIUrl":"https://doi.org/10.1163/15718034-bja10099","url":null,"abstract":"\u0000This article addresses the role of third States in public interest litigation – i.e., ongoing proceedings concerning interests which they share with the international community. It scrutinizes third-State intervention in inter-State cases through the prism of rules and principles arising in public interest litigation, and aims to clarify the limits of such participation. Having synthesized the relevant law and doctrine of intervention practice before the ICJ and other institutional courts, it considers the extent to which third-State interests find expression through Articles 62 and 63 of the ICJ Statute. It examines the invocation of international legal responsibility on the basis of obligations erga omnes and erga omnes partes, as well as the prospect of intervention on this basis. It then identifies and addresses jurisdictional and procedural questions arising in these and other instances of “public interest” intervention. It concludes by envisaging the prospective institutional development of multilateral participation in public interest litigation.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89376402","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 : 2023-07-21DOI: 10.1163/15718034-bja10092
Jane A. Hofbauer
International procedural law remains largely party-oriented and directed at the preservation of individual interests. A tension therefore arises when the ICJ is asked to adjudicate “public interest norms”. Against this background, one might ask whether advisory opinions by the ICJ might serve as a more appropriate forum for protecting and enforcing public interests. Among others, they might prove better equipped for, e.g., clarifying and interpreting public interest obligations without a breach thereof necessarily having already occurred, or in the case of breaches by multiple parties. However, among the generally low numbers of requests for opinions by the ICJ so far only two can be classified as “traditional public interest litigation”. Recent initiatives on “community-oriented” interests have not (yet) moved forward, leaving their true potential open for debate. The article focuses on the ICJ’s procedural framework in advisory proceedings and its suitability as a forum for enforcing public interests. The argument is made that while indeed several rationales can be identified which make this procedure a seemingly well-suited format for public interest litigation, the filing of requests is often subject to political hurdles and dependent on the overall perception of the Court’s exercise of its judicial function. This is rounded off by a discussion of different proposals and an assessment whether these might lead to a strengthening of the Court’s competence when it comes to serving as a forum for “public interest litigation.”
{"title":"Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the International Court of Justice","authors":"Jane A. Hofbauer","doi":"10.1163/15718034-bja10092","DOIUrl":"https://doi.org/10.1163/15718034-bja10092","url":null,"abstract":"\u0000International procedural law remains largely party-oriented and directed at the preservation of individual interests. A tension therefore arises when the ICJ is asked to adjudicate “public interest norms”. Against this background, one might ask whether advisory opinions by the ICJ might serve as a more appropriate forum for protecting and enforcing public interests. Among others, they might prove better equipped for, e.g., clarifying and interpreting public interest obligations without a breach thereof necessarily having already occurred, or in the case of breaches by multiple parties. However, among the generally low numbers of requests for opinions by the ICJ so far only two can be classified as “traditional public interest litigation”. Recent initiatives on “community-oriented” interests have not (yet) moved forward, leaving their true potential open for debate.\u0000The article focuses on the ICJ’s procedural framework in advisory proceedings and its suitability as a forum for enforcing public interests. The argument is made that while indeed several rationales can be identified which make this procedure a seemingly well-suited format for public interest litigation, the filing of requests is often subject to political hurdles and dependent on the overall perception of the Court’s exercise of its judicial function. This is rounded off by a discussion of different proposals and an assessment whether these might lead to a strengthening of the Court’s competence when it comes to serving as a forum for “public interest litigation.”","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77841276","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 : 2023-07-21DOI: 10.1163/15718034-bja10096
J. Gerards
The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.
{"title":"Moving Away from Open Judicial Balancing Review","authors":"J. Gerards","doi":"10.1163/15718034-bja10096","DOIUrl":"https://doi.org/10.1163/15718034-bja10096","url":null,"abstract":"\u0000The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78891774","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 : 2023-07-21DOI: 10.1163/15718034-bja10097
Zhenni Li
{"title":"The Asian Turn in Foreign Investment, edited by Mahdev Mohan and Chester Brown","authors":"Zhenni Li","doi":"10.1163/15718034-bja10097","DOIUrl":"https://doi.org/10.1163/15718034-bja10097","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75897978","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 : 2023-07-21DOI: 10.1163/15718034-bja10095
N. Nedeski, T. Sparks, Gleider Hernández
As climate negotiations fail to deliver the progress that States, activists, and others desire to see in tackling climate change, attention is rapidly turning to potential legal responses. This article investigates the potential of the ICJ’s contentious procedure as a forum for climate-related complaints, and focuses in particular on the provisional measures phase of a case. We consider the potential for a climate-related application for interim protection to meet the test set down by the Court for the issuing of a provisional measures order: prima facie jurisdiction, plausibility, and an urgent risk of irreparable prejudice. We conclude that a carefully constructed climate application could meet these criteria, but that it would be important to foresee and take account of a future application for interim protection from the outset in designing a case.
{"title":"The World Is Burning, Urgently and Irreparably – a Plea for Interim Protection against Climatic Change at the ICJ","authors":"N. Nedeski, T. Sparks, Gleider Hernández","doi":"10.1163/15718034-bja10095","DOIUrl":"https://doi.org/10.1163/15718034-bja10095","url":null,"abstract":"\u0000As climate negotiations fail to deliver the progress that States, activists, and others desire to see in tackling climate change, attention is rapidly turning to potential legal responses. This article investigates the potential of the ICJ’s contentious procedure as a forum for climate-related complaints, and focuses in particular on the provisional measures phase of a case. We consider the potential for a climate-related application for interim protection to meet the test set down by the Court for the issuing of a provisional measures order: prima facie jurisdiction, plausibility, and an urgent risk of irreparable prejudice. We conclude that a carefully constructed climate application could meet these criteria, but that it would be important to foresee and take account of a future application for interim protection from the outset in designing a case.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73772658","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 : 2023-07-21DOI: 10.1163/15718034-bja10093
P. Dumberry
This article examines how tribunals set up under the CAFTA-DR have interpreted the fair and equitable treatment (‘FET’) standard under Article 10.5 in the last 15 years. It shows that they have consistently referred to NAFTA case law to define the standard and to interpret the scope and content of the different elements it contains (arbitrary conduct, legitimate expectations, due process). The only exception is regarding denial of justice. This is a fascinating example of “cross treaty interpretation”. I will explain the reasons why CAFTA tribunals have done so and examine whether or not this “cross treaty interpretation” en bloc is legitimate and sound in light of the canons of treaty interpretation.
{"title":"“Cross Treaty Interpretation” en bloc or How CAFTA-DR Tribunals Are Systematically Interpreting the FET Standard Based on NAFTA Case Law","authors":"P. Dumberry","doi":"10.1163/15718034-bja10093","DOIUrl":"https://doi.org/10.1163/15718034-bja10093","url":null,"abstract":"\u0000This article examines how tribunals set up under the CAFTA-DR have interpreted the fair and equitable treatment (‘FET’) standard under Article 10.5 in the last 15 years. It shows that they have consistently referred to NAFTA case law to define the standard and to interpret the scope and content of the different elements it contains (arbitrary conduct, legitimate expectations, due process). The only exception is regarding denial of justice. This is a fascinating example of “cross treaty interpretation”. I will explain the reasons why CAFTA tribunals have done so and examine whether or not this “cross treaty interpretation” en bloc is legitimate and sound in light of the canons of treaty interpretation.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73864241","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 : 2023-07-17DOI: 10.1163/15718034-bja10094
Ivo Tarik de Vries-Zou
To decide on the question of material jurisdiction under a compromissory clause, the World Court has at times interpreted treaties provisionally, seeing whether these could reasonably, though not per se correctly, be read so as to apply to acts of which an applicant complains. Other times it has interpreted treaties definitively, to assess whether the respondent actually has the obligations it allegedly violated. The former method may be criticised for not basing jurisdiction in consent; the latter for prejudging the merits. This article shows that the Court has nevertheless made the latter its standard approach. But to avoid prejudging the merits, it will only use definitive interpretations to resolve those preliminary objections, or aspects of an objection, which it perceives as raising issues relevant to its material jurisdiction, as opposed to the merits. The article argues this innovation creates uncertainty for the parties and could be a misuse of the definitive approach.
{"title":"An Innovation in the Test for Material Jurisdiction under Certain Compromissory Clauses","authors":"Ivo Tarik de Vries-Zou","doi":"10.1163/15718034-bja10094","DOIUrl":"https://doi.org/10.1163/15718034-bja10094","url":null,"abstract":"\u0000To decide on the question of material jurisdiction under a compromissory clause, the World Court has at times interpreted treaties provisionally, seeing whether these could reasonably, though not per se correctly, be read so as to apply to acts of which an applicant complains. Other times it has interpreted treaties definitively, to assess whether the respondent actually has the obligations it allegedly violated. The former method may be criticised for not basing jurisdiction in consent; the latter for prejudging the merits. This article shows that the Court has nevertheless made the latter its standard approach. But to avoid prejudging the merits, it will only use definitive interpretations to resolve those preliminary objections, or aspects of an objection, which it perceives as raising issues relevant to its material jurisdiction, as opposed to the merits. The article argues this innovation creates uncertainty for the parties and could be a misuse of the definitive approach.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86485077","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 : 2023-03-03DOI: 10.1163/15718034-bja10088
René Figueredo Corrales
The ICJ has asserted that the prohibition of genocide generates both obligations erga omnes and obligations erga omnes partes. While it has recently referred to the question of standing and the erga omnes partes character of the obligations under the Genocide Convention in The Gambia v. Myanmar case, the Court has not yet addressed this question from the perspective of the prohibition of genocide as an obligation erga omnes in a broader context. Hence, the purpose of this article is to examine whether the erga omnes character of the prohibition of genocide under general international law confers upon States a right of standing to invoke State responsibility before the Court, provided that certain conditions are met. Three instances are envisaged through which this could be possible, but for the time being, The Gambia v. Myanmar case remains the most representative one in this matter.
{"title":"In the Pursuit of High Purposes: The International Court of Justice, Obligations Erga Omnes and the Prohibition of Genocide","authors":"René Figueredo Corrales","doi":"10.1163/15718034-bja10088","DOIUrl":"https://doi.org/10.1163/15718034-bja10088","url":null,"abstract":"\u0000The ICJ has asserted that the prohibition of genocide generates both obligations erga omnes and obligations erga omnes partes. While it has recently referred to the question of standing and the erga omnes partes character of the obligations under the Genocide Convention in The Gambia v. Myanmar case, the Court has not yet addressed this question from the perspective of the prohibition of genocide as an obligation erga omnes in a broader context. Hence, the purpose of this article is to examine whether the erga omnes character of the prohibition of genocide under general international law confers upon States a right of standing to invoke State responsibility before the Court, provided that certain conditions are met. Three instances are envisaged through which this could be possible, but for the time being, The Gambia v. Myanmar case remains the most representative one in this matter.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80566307","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 : 2023-03-03DOI: 10.1163/15718034-12341500
Juan-Pablo Perez-Leon-Acevedo
Within their different mandates, the ICJ and the ICC have decided on compensation for mass atrocities, including the same factual scenarios and related dual state/individual responsibility. However, no publication has examined these developments jointly and comparatively. Thus, this article seeks to determine how both courts are and should be developing compensation jurisprudence on mass atrocity cases. This article suggests that these two courts should construe a coherent, principle-based, and human rights-oriented international law of compensation for mass atrocities. Despite the differences in the compensation law and practice of the ICJ and the ICC, there are common elements such as the violation of an international obligation (wrongful act/international crime), damages, and the causal link between them. There are also some similarities concerning compensation goals, proof matters, and damage valuation. Both courts can and should conduct an adapted use of each other’s jurisprudence, considering their different mandates rather than doing so mechanically.
{"title":"Compensation in Cases of Mass Atrocities at the International Court of Justice and the International Criminal Court","authors":"Juan-Pablo Perez-Leon-Acevedo","doi":"10.1163/15718034-12341500","DOIUrl":"https://doi.org/10.1163/15718034-12341500","url":null,"abstract":"Within their different mandates, the ICJ and the ICC have decided on compensation for mass atrocities, including the same factual scenarios and related dual state/individual responsibility. However, no publication has examined these developments jointly and comparatively. Thus, this article seeks to determine how both courts are and should be developing compensation jurisprudence on mass atrocity cases. This article suggests that these two courts should construe a coherent, principle-based, and human rights-oriented international law of compensation for mass atrocities. Despite the differences in the compensation law and practice of the ICJ and the ICC, there are common elements such as the violation of an international obligation (wrongful act/international crime), damages, and the causal link between them. There are also some similarities concerning compensation goals, proof matters, and damage valuation. Both courts can and should conduct an adapted use of each other’s jurisprudence, considering their different mandates rather than doing so mechanically.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85621687","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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