Pub Date : 2023-03-03DOI: 10.1163/15718034-bja10087
Matthew E.K. Neuhaus
{"title":"The Laws of Yesterday’s Wars – From Indigenous Australians to the American Civil War, edited by Samuel C. Duckett White","authors":"Matthew E.K. Neuhaus","doi":"10.1163/15718034-bja10087","DOIUrl":"https://doi.org/10.1163/15718034-bja10087","url":null,"abstract":"","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":"73074114","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-bja10086
F. Eichberger
In recent years, the non-appearance of respondent States has been experiencing a renaissance before the ICJ. Frequently, the practice is concomitant with informal communications by the non-participating party to the Court. The ICJ has been rather generous in considering such communications in light of the obligation under Article 53(2) of its Statute to examine comprehensively and proprio motu its jurisdiction and the merits in cases of non-appearance. However, informal communications force the Court into a dilemma. For one, they challenge the equality of the parties and the good administration of justice. More generally, taking too lenient an approach allows non-participating States to “have their cake and eat it too”: they try to delegitimize the proceedings while simultaneously presenting their position in a favourable light. This article, therefore, encourages the Court to take a more formal approach regarding informal communications while respecting its duties under Article 53(2) of the Statute.
{"title":"Informal Communications to the International Court of Justice in Cases of Non-appearance","authors":"F. Eichberger","doi":"10.1163/15718034-bja10086","DOIUrl":"https://doi.org/10.1163/15718034-bja10086","url":null,"abstract":"\u0000In recent years, the non-appearance of respondent States has been experiencing a renaissance before the ICJ. Frequently, the practice is concomitant with informal communications by the non-participating party to the Court. The ICJ has been rather generous in considering such communications in light of the obligation under Article 53(2) of its Statute to examine comprehensively and proprio motu its jurisdiction and the merits in cases of non-appearance.\u0000However, informal communications force the Court into a dilemma. For one, they challenge the equality of the parties and the good administration of justice. More generally, taking too lenient an approach allows non-participating States to “have their cake and eat it too”: they try to delegitimize the proceedings while simultaneously presenting their position in a favourable light. This article, therefore, encourages the Court to take a more formal approach regarding informal communications while respecting its duties under Article 53(2) of the Statute.","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":"86550633","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-bja10089
Chen Yu
The joint interpretation mechanism is gaining increasing attention in the recent practice and study of international investment law. In the past, the NAFTA Free Trade Commission exercised this interpretative authority by issuing the controversial Notes of Interpretation which limit the scope of fair and equitable treatment (FET) to customary international law. While much has been debated about the legitimacy of the Notes in the context of NAFTA arbitration, this article examines its influence on tribunals not bound by it (i.e. non-NAFTA tribunals). An extensive review of cases shows that non-NAFTA tribunals are generally cautious about directly applying the Notes to their own interpretation, while some followed NAFTA precedents shaped by the Notes. Considering the possible proliferation of the joint interpretation mechanism in the future, this article further examines the role of third states’ joint interpretations in treaty interpretation through the lens of Articles 31 and 32 of the VCLT.
{"title":"The “Externalities” of Joint Interpretations in Investment Arbitration: Learning from the Past","authors":"Chen Yu","doi":"10.1163/15718034-bja10089","DOIUrl":"https://doi.org/10.1163/15718034-bja10089","url":null,"abstract":"\u0000The joint interpretation mechanism is gaining increasing attention in the recent practice and study of international investment law. In the past, the NAFTA Free Trade Commission exercised this interpretative authority by issuing the controversial Notes of Interpretation which limit the scope of fair and equitable treatment (FET) to customary international law. While much has been debated about the legitimacy of the Notes in the context of NAFTA arbitration, this article examines its influence on tribunals not bound by it (i.e. non-NAFTA tribunals). An extensive review of cases shows that non-NAFTA tribunals are generally cautious about directly applying the Notes to their own interpretation, while some followed NAFTA precedents shaped by the Notes. Considering the possible proliferation of the joint interpretation mechanism in the future, this article further examines the role of third states’ joint interpretations in treaty interpretation through the lens of Articles 31 and 32 of the VCLT.","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":"83278084","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-bja10082
A. Berkes
{"title":"Les 3 cours régionales des droits de l’homme in context: La justice qui n’allait pas de soi, written by Laurence Burgorgue-Larsen","authors":"A. Berkes","doi":"10.1163/15718034-bja10082","DOIUrl":"https://doi.org/10.1163/15718034-bja10082","url":null,"abstract":"","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":"89122794","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: 10.1163/15718034-02201000
{"title":"Front matter","authors":"","doi":"10.1163/15718034-02201000","DOIUrl":"https://doi.org/10.1163/15718034-02201000","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135339417","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 : 2023-02-15DOI: 10.1163/15718034-12341501
G. Sacerdoti
The WTO Appellate Body ceased to operate at the beginning of 2020, leading to the semi-paralysis of the WTO’s well-functioning dispute settlement system as a consequence of the blockage of the appointment of its members by the US. This article traces back to the development of trade adjudication within the broader process of the “judicialization” of international relations, from the GATT to the WTO, highlighting the latter’s innovations and successful functioning for more than 20 years. The US-led paralysis has evidenced the fragility of international adjudication when faced with powerful opposition. It remains to be seen whether the support for revitalizing the WTO and its dispute settlement system expressed by the WTO Members at the Ministerial Conference of June 2022 will result in reinstating a functioning system, capable of meeting the needs of international trade in a global but increasingly politicized and fractured context.
{"title":"Adjudication of International Trade Disputes: from Success to Crisis. What’s Next?","authors":"G. Sacerdoti","doi":"10.1163/15718034-12341501","DOIUrl":"https://doi.org/10.1163/15718034-12341501","url":null,"abstract":"\u0000The WTO Appellate Body ceased to operate at the beginning of 2020, leading to the semi-paralysis of the WTO’s well-functioning dispute settlement system as a consequence of the blockage of the appointment of its members by the US.\u0000This article traces back to the development of trade adjudication within the broader process of the “judicialization” of international relations, from the GATT to the WTO, highlighting the latter’s innovations and successful functioning for more than 20 years.\u0000The US-led paralysis has evidenced the fragility of international adjudication when faced with powerful opposition. It remains to be seen whether the support for revitalizing the WTO and its dispute settlement system expressed by the WTO Members at the Ministerial Conference of June 2022 will result in reinstating a functioning system, capable of meeting the needs of international trade in a global but increasingly politicized and fractured context.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80806478","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 : 2022-12-05DOI: 10.1163/15718034-12341496
A. Kulick
Social media platform corporations such as Meta (Facebook), Twitter, etc. find themselves in a position of having to interpret international human rights norms, in particular Article 19 of the International Covenant on Civil and Political Rights (ICCPR) (freedom of expression). Millions or even billions of content moderation decisions need to be taken on the platforms each day that affect users’ human rights interests. Since content moderation is integral to the technical and commercial set-up of these platforms, corporate decision-making vis-à-vis human rights and thus corporate interpretation of international human rights norms is inevitable. Yet, corporations are flawed interpreters. Whereas they act, like a court or tribunal, as triadic decision-makers, they, unlike a court or tribunal, do not share the neutrality, impartiality and independence of the latter. In particular, they are responsible to their shareholders and they pursue commercial interests when moderating content. This article grapples with the theoretical and doctrinal implications of flawed but inevitable corporate human rights interpretation. Taking the early practice of the Oversight Board, a body established by Meta, Inc. (Facebook), in order to tackle the “hard cases” of content moderation as a case study, the pitfalls and challenges of corporate human rights interpretation become apparent. In the end, I submit a few suggestions in order to remedy what seems to be here to stay with us at least for as long as an important part of public discourse is channelled through social media platforms.
社交媒体平台公司，如Meta (Facebook)、Twitter等，发现自己不得不解释国际人权准则，特别是《公民权利和政治权利国际公约》(ICCPR)第19条(言论自由)。这些平台每天都需要做出数百万甚至数十亿影响用户人权利益的内容审核决定。由于内容审核是这些平台的技术和商业设置的组成部分，因此企业对-à-vis人权的决策以及对国际人权规范的企业解释是不可避免的。然而，企业是有缺陷的解释者。虽然他们像法院或法庭一样作为三位一体的决策者，但与法院或法庭不同，他们不具有后者的中立性、公正性和独立性。特别是，他们对股东负责，在审核内容时追求商业利益。本文探讨了有缺陷但不可避免的企业人权解释的理论和理论含义。以Meta, Inc. (Facebook)成立的监管委员会(Oversight Board)的早期做法为例，将处理内容审核的“难题”作为案例研究，企业人权解释的陷阱和挑战变得显而易见。最后，我提出了一些建议，以补救似乎在我们身边的问题，至少只要公共话语的一个重要部分是通过社交媒体平台引导的。
{"title":"Meta’s Oversight Board and Beyond – Corporations as Interpreters and Adjudicators of International Human Rights","authors":"A. Kulick","doi":"10.1163/15718034-12341496","DOIUrl":"https://doi.org/10.1163/15718034-12341496","url":null,"abstract":"\u0000Social media platform corporations such as Meta (Facebook), Twitter, etc. find themselves in a position of having to interpret international human rights norms, in particular Article 19 of the International Covenant on Civil and Political Rights (ICCPR) (freedom of expression). Millions or even billions of content moderation decisions need to be taken on the platforms each day that affect users’ human rights interests. Since content moderation is integral to the technical and commercial set-up of these platforms, corporate decision-making vis-à-vis human rights and thus corporate interpretation of international human rights norms is inevitable. Yet, corporations are flawed interpreters. Whereas they act, like a court or tribunal, as triadic decision-makers, they, unlike a court or tribunal, do not share the neutrality, impartiality and independence of the latter. In particular, they are responsible to their shareholders and they pursue commercial interests when moderating content. This article grapples with the theoretical and doctrinal implications of flawed but inevitable corporate human rights interpretation. Taking the early practice of the Oversight Board, a body established by Meta, Inc. (Facebook), in order to tackle the “hard cases” of content moderation as a case study, the pitfalls and challenges of corporate human rights interpretation become apparent. In the end, I submit a few suggestions in order to remedy what seems to be here to stay with us at least for as long as an important part of public discourse is channelled through social media platforms.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86494076","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 : 2022-11-23DOI: 10.1163/15718034-12341494
Kawser Ahmed
Is Palestine a state? The International Court of Justice (ICJ) is expected to address this question in the Case concerning Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) during the preliminary objections stage. In the meanwhile, scholars have discussed possible options that international law can offer to deal with the question of Palestine’s statehood. The suggestions include, for example, state recognition, the Vienna formula, etc. This article, however, envisages that in determining Palestine’s statehood the ICJ is likely to adopt an objective assessment test on the basis of international legal criteria of statehood.
{"title":"Will the ICJ Objectively Assess the Statehood of Palestine? A Brief Reflection","authors":"Kawser Ahmed","doi":"10.1163/15718034-12341494","DOIUrl":"https://doi.org/10.1163/15718034-12341494","url":null,"abstract":"\u0000 Is Palestine a state? The International Court of Justice (ICJ) is expected to address this question in the Case concerning Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) during the preliminary objections stage. In the meanwhile, scholars have discussed possible options that international law can offer to deal with the question of Palestine’s statehood. The suggestions include, for example, state recognition, the Vienna formula, etc. This article, however, envisages that in determining Palestine’s statehood the ICJ is likely to adopt an objective assessment test on the basis of international legal criteria of statehood.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79762208","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 : 2022-11-23DOI: 10.1163/15718034-12341495
Alexandre Tavadian, Clément Ducamin
All international organizations have or ought to have a code of conduct. When international civil servants breach their basic obligations and engage in misconduct, they may face disciplinary proceedings and be subject to a wide range of sanctions, including dismissal and other forms of separation from service. However, different international organizations apply dissimilar standards of proof for establishing the alleged facts that constitute misconduct. For instance, in some institutions, the applicable standard of proof is “beyond a reasonable doubt”, while in others, it is a balance of probabilities. The lack of consistency is attributable to the jurisprudence of various international administrative tribunals. This article compares how six international administrative tribunals interpret and apply the evidential threshold to disciplinary cases. It identifies practical difficulties caused by a lack of a uniform approach and recommends remedial measures for international organizations and international administrative tribunals.
{"title":"Proliferation of Standards of Proof in International Administrative Tribunals","authors":"Alexandre Tavadian, Clément Ducamin","doi":"10.1163/15718034-12341495","DOIUrl":"https://doi.org/10.1163/15718034-12341495","url":null,"abstract":"\u0000 All international organizations have or ought to have a code of conduct. When international civil servants breach their basic obligations and engage in misconduct, they may face disciplinary proceedings and be subject to a wide range of sanctions, including dismissal and other forms of separation from service. However, different international organizations apply dissimilar standards of proof for establishing the alleged facts that constitute misconduct. For instance, in some institutions, the applicable standard of proof is “beyond a reasonable doubt”, while in others, it is a balance of probabilities. The lack of consistency is attributable to the jurisprudence of various international administrative tribunals. This article compares how six international administrative tribunals interpret and apply the evidential threshold to disciplinary cases. It identifies practical difficulties caused by a lack of a uniform approach and recommends remedial measures for international organizations and international administrative tribunals.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85910013","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 : 2022-11-23DOI: 10.1163/15718034-12341493
J. Merlin
The method currently applied by the International Court of Justice for the purpose of indicating provisional measures does not fully preclude the risk that provisional measures might prove in retrospect to have been unjustified in specific circumstances. The question arises whether a litigating State might be entitled to reparation for the prejudice incurred from complying with onerous provisional measures in such cases. While the Court has only exceptionally come close to such a situation, it has not been faced with reparation claims yet. However, developments since LaGrand should prompt an examination of how the Court’s judicial practice may address the risk of problematic discrepancy between provisional measures and the Court’s final decision.
{"title":"Unduly Indicated? Provisional Measures and Subsequent Adverse Findings at the International Court of Justice","authors":"J. Merlin","doi":"10.1163/15718034-12341493","DOIUrl":"https://doi.org/10.1163/15718034-12341493","url":null,"abstract":"\u0000 The method currently applied by the International Court of Justice for the purpose of indicating provisional measures does not fully preclude the risk that provisional measures might prove in retrospect to have been unjustified in specific circumstances. The question arises whether a litigating State might be entitled to reparation for the prejudice incurred from complying with onerous provisional measures in such cases. While the Court has only exceptionally come close to such a situation, it has not been faced with reparation claims yet. However, developments since LaGrand should prompt an examination of how the Court’s judicial practice may address the risk of problematic discrepancy between provisional measures and the Court’s final decision.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87145801","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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