Pub Date : 2022-11-18DOI: 10.1163/15718034-12341497
V. Raghavan, Rilwan Shittu, W. Abah
{"title":"The Practice of Independent Accountability Mechanisms (IAMs): Towards Good Governance in Development Finance, edited by Owen McIntyre and Suresh Nanwani","authors":"V. Raghavan, Rilwan Shittu, W. Abah","doi":"10.1163/15718034-12341497","DOIUrl":"https://doi.org/10.1163/15718034-12341497","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"38 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76659016","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 : 2022-11-18DOI: 10.1163/15718034-12341492
Craig D. Gaver
One of the broadest international disputes in recent years is the perfect case to test Judge Yusuf’s assertion that “there can be no rule of law without a court to apply it.” From 2017 to 2021, Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates (the “Quartet”), on one hand, and Qatar, on the other, were engaged in a standoff, severing nearly all diplomatic and economic relations and lodging a number of legal challenges in various fora. These proceedings collectively touched on treaty interpretation, State responsibility, countermeasures and non-coercive sanctions, human rights, investment and trade, aviation law, and still other legal issues. By comparing the jurisdiction, reasoning, and dispositions of the different modalities of dispute resolution, this article demonstrates that international courts were neither sufficient nor necessary for resolving the macro dispute among the parties, particularly in light of non-judicial alternative proceedings. It illustrates, with respect to Judge Yusuf, that non- judicial dispute resolution fora are just as important as international courts for upholding the international rule of law.
{"title":"Recourse to International Courts and Tribunals in the 2017–2021 Gulf Dispute","authors":"Craig D. Gaver","doi":"10.1163/15718034-12341492","DOIUrl":"https://doi.org/10.1163/15718034-12341492","url":null,"abstract":"\u0000One of the broadest international disputes in recent years is the perfect case to test Judge Yusuf’s assertion that “there can be no rule of law without a court to apply it.” From 2017 to 2021, Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates (the “Quartet”), on one hand, and Qatar, on the other, were engaged in a standoff, severing nearly all diplomatic and economic relations and lodging a number of legal challenges in various fora. These proceedings collectively touched on treaty interpretation, State responsibility, countermeasures and non-coercive sanctions, human rights, investment and trade, aviation law, and still other legal issues. By comparing the jurisdiction, reasoning, and dispositions of the different modalities of dispute resolution, this article demonstrates that international courts were neither sufficient nor necessary for resolving the macro dispute among the parties, particularly in light of non-judicial alternative proceedings. It illustrates, with respect to Judge Yusuf, that non- judicial dispute resolution fora are just as important as international courts for upholding the international rule of law.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"75 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83801765","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 : 2022-11-18DOI: 10.1163/15718034-12341491
Anna Ventouratou
This article focuses on the legality of unilateral economic sanctions that consist in the non-performance of obligations in the field of economic relations under relevant applicable treaties, and on the role that international adjudicative bodies can play in drawing a line between legal and illegal economic sanctions. It revisits the scarce relevant litigation before the ICJ and the WTO, pinpointing the grey areas in the law applicable to economic sanctions, on which further clarification is needed. The article argues that international adjudication can play a crucial role in such process of clarification, not only by elucidating the relevant legal regime, but also by triggering State reactions, which in turn can prompt legal developments in this area. Once the “rule-ness” of the relevant legal regime is firmly established, the need for court “supervision” will decrease, thus making it possible to envisage a fair system of international law enforcement without international courts.
{"title":"Litigating Economic Sanctions","authors":"Anna Ventouratou","doi":"10.1163/15718034-12341491","DOIUrl":"https://doi.org/10.1163/15718034-12341491","url":null,"abstract":"\u0000This article focuses on the legality of unilateral economic sanctions that consist in the non-performance of obligations in the field of economic relations under relevant applicable treaties, and on the role that international adjudicative bodies can play in drawing a line between legal and illegal economic sanctions. It revisits the scarce relevant litigation before the ICJ and the WTO, pinpointing the grey areas in the law applicable to economic sanctions, on which further clarification is needed. The article argues that international adjudication can play a crucial role in such process of clarification, not only by elucidating the relevant legal regime, but also by triggering State reactions, which in turn can prompt legal developments in this area. Once the “rule-ness” of the relevant legal regime is firmly established, the need for court “supervision” will decrease, thus making it possible to envisage a fair system of international law enforcement without international courts.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"20 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84514163","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 : 2022-11-18DOI: 10.1163/15718034-12341487
D. Bigge
In commenting on the roles of Elihu Root and James Brown Scott in the founding of the Permanent Court of International Justice (PCIJ), former International Court of Justice (ICJ) President Abdulqawi Yusuf stated “there can be no [international] rule of law without a court to apply it.” The American Society of International Law (ASIL)’s International Courts and Tribunals Interest Group recently hosted a symposium event to probe this statement. Without rehashing the voluminous scholarship on the international rule of law, this introduction to the symposium will explore specifically whether a court such as the ICJ or the PCIJ is a prerequisite to an international rule of law. The international court system as currently formulated plainly does not meet the requirements for the rule of law as often defined for domestic systems. Unless we are prepared to accept that there is no international rule of law, or only a partial or developing rule of law, this means that there must be an alternative definition of “rule of law” for international relations, which does not consider international courts as a prerequisite to rule of law in all circumstances, and highlights other enforcement mechanisms and arbitration. Accepting this point does not diminish the important role of international courts in the application of international law but does serve to emphasize how other mechanisms fill important rule-of-law gaps left by international courts. Each of the articles that follow this introduction addresses these mechanisms – including administrative bodies, sanctions, investigative mechanisms, and ad hoc arbitration – and how each mechanism interacts with the international court system.
前国际法院院长优素福(Abdulqawi Yusuf)在评论伊莱胡·鲁特(Elihu Root)和詹姆斯·布朗·斯科特(James Brown Scott)在建立常设国际法院(PCIJ)过程中所扮演的角色时表示，“没有法院来实施，就没有[国际]法治。”美国国际法学会(ASIL)的国际法院和法庭利益小组最近举办了一次研讨会，探讨这一声明。在不重复大量关于国际法治的学术研究的情况下，本次研讨会的介绍将具体探讨像国际法院或PCIJ这样的法院是否是国际法治的先决条件。目前制订的国际法院制度显然不符合经常为国内制度所规定的法治要求。除非我们准备接受没有国际法治，或者只有部分或正在发展的法治，否则这就意味着必须对国际关系中的“法治”作出另一种定义，即不将国际法院视为所有情况下法治的先决条件，并强调其他执行机制和仲裁。接受这一点并不会削弱国际法院在适用国际法方面的重要作用，而是有助于强调其他机制如何填补国际法院留下的重要法治空白。本导言之后的每一篇文章都涉及这些机制- -包括行政机构、制裁、调查机制和特设仲裁- -以及每个机制如何与国际法院系统相互作用。
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Pub Date : 2022-11-18DOI: 10.1163/15718034-12341489
Eleni Methymaki
This article focuses on international inspections, a means of international supervision and monitoring widely used in international law. It argues that to understand how order is produced in and across the international system, it is important to think beyond international adjudication for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to ensure compliance with, and implementation of, international norms. Second, not only are inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their design – they may also function similarly to dispute settlement processes. Third, and most importantly, that international adjudication is based on state consent is often presented as an important safeguard of sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.
{"title":"Thinking Beyond International Adjudication: Inspections as Instruments of Order Production in the International System","authors":"Eleni Methymaki","doi":"10.1163/15718034-12341489","DOIUrl":"https://doi.org/10.1163/15718034-12341489","url":null,"abstract":"\u0000This article focuses on international inspections, a means of international supervision and monitoring widely used in international law. It argues that to understand how order is produced in and across the international system, it is important to think beyond international adjudication for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to ensure compliance with, and implementation of, international norms. Second, not only are inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their design – they may also function similarly to dispute settlement processes. Third, and most importantly, that international adjudication is based on state consent is often presented as an important safeguard of sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76895979","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 : 2022-11-18DOI: 10.1163/15718034-12341490
Helen Jennings
This article explores the evolution of UN fact-finding mechanisms as a method of pursuing legal accountability for violations of international criminal and human rights law, specifically sexual and gender-based violence and violations of sexual and reproductive health rights in conflict situations. The article argues that, in order to effectively contribute to the task of securing individual accountability for violations of international criminal law, while also pursuing political accountability for mass abuse of human rights, the UN system of fact-finding mechanisms must be reformed. The mandates of Commissions of Inquiry must be stripped back to their core function of investigating human rights abuse, while Novel Investigative Mechanisms take over the individual criminal responsibility mandate. Until both these functions are given separate and adequate attention by properly resourced fact-finding mechanisms, victims of abuse such as sexual and gender-based violence and violation of sexual and reproductive health rights in countries without recourse to international courts will be denied justice and recognition through UN channels.
{"title":"In the Absence of a Tribunal, Can UN Investigative Mechanisms Ensure Justice for Victims of Rape as a Weapon of War?","authors":"Helen Jennings","doi":"10.1163/15718034-12341490","DOIUrl":"https://doi.org/10.1163/15718034-12341490","url":null,"abstract":"\u0000This article explores the evolution of UN fact-finding mechanisms as a method of pursuing legal accountability for violations of international criminal and human rights law, specifically sexual and gender-based violence and violations of sexual and reproductive health rights in conflict situations. The article argues that, in order to effectively contribute to the task of securing individual accountability for violations of international criminal law, while also pursuing political accountability for mass abuse of human rights, the UN system of fact-finding mechanisms must be reformed. The mandates of Commissions of Inquiry must be stripped back to their core function of investigating human rights abuse, while Novel Investigative Mechanisms take over the individual criminal responsibility mandate. Until both these functions are given separate and adequate attention by properly resourced fact-finding mechanisms, victims of abuse such as sexual and gender-based violence and violation of sexual and reproductive health rights in countries without recourse to international courts will be denied justice and recognition through UN channels.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"17 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81276028","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 : 2022-11-18DOI: 10.1163/15718034-12341488
Philip A. Burton
The claim that international courts are a necessary precondition for the existence of international law rests on a more general assumption that the way a legal order is institutionalised determines the character of law within that legal order. This article explores the underlying structural association between institution form and the quality of law in the context of the “experiment of international administration”: the concentration, monopolisation and transformation of international authority in the aftermath of the First World War. By examining neglected sites of legal activity, in particular the Advisory Committee on the Traffic of Women and Children and the Permanent Mandates Commission, the article argues that an interwar “administrative turn” opened up new terrain for heterogeneous forms of international legal discourse.
{"title":"Law, Adjudication, and the “Experiment of International Administration” (1920–1946)","authors":"Philip A. Burton","doi":"10.1163/15718034-12341488","DOIUrl":"https://doi.org/10.1163/15718034-12341488","url":null,"abstract":"\u0000The claim that international courts are a necessary precondition for the existence of international law rests on a more general assumption that the way a legal order is institutionalised determines the character of law within that legal order. This article explores the underlying structural association between institution form and the quality of law in the context of the “experiment of international administration”: the concentration, monopolisation and transformation of international authority in the aftermath of the First World War. By examining neglected sites of legal activity, in particular the Advisory Committee on the Traffic of Women and Children and the Permanent Mandates Commission, the article argues that an interwar “administrative turn” opened up new terrain for heterogeneous forms of international legal discourse.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"66 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80131386","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 : 2022-11-18DOI: 10.1163/15718034-12341498
K. Bradley
{"title":"Judicial Dis-Appointments: Judicial Appointments Reform and the Rise of European Judicial Independence, written by Mitchel de S.-O.-L’E. Lasser","authors":"K. Bradley","doi":"10.1163/15718034-12341498","DOIUrl":"https://doi.org/10.1163/15718034-12341498","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"90 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72508787","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 : 2022-07-12DOI: 10.1163/15718034-12341475
Lilla Ozoráková
Today, genocide is known as “the crime of crimes”, for its fundamental implications for human morality. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as a crime perpetrated against “a national, ethnical, racial or religious group”. The same definition was also adopted verbatim by the statutes of the international criminal tribunals and courts. Although this was a successful step towards the establishment of an international regime of criminal responsibility for one of the most heinous violations of international law (as well as towards the ultimate eradication of the crime of genocide), the definition of genocide, as set out in the Genocide Convention, has often been subjected to criticism due to its limited scope. The definition in Article II of the Genocide Convention was the outcome of a complex process of negotiations and consensus, reflecting the prevailing views on genocide during the drafting of the Genocide Convention. However, in order to understand the reasoning behind the limited scope of the definition, it is necessary to examine the historical context in which the crime of genocide was conceptualized and subsequently criminalized. The aim of this article is to explore the historical background of the concept of genocide, with specific attention to the drafting processes of the most important legal instruments, including the Genocide Convention and the statutes of the international criminal courts and tribunals, to illustrate the foundations of the concept and explain the reasoning behind the current definition of genocide. In particular, this article will focus on examining the legacy of Raphael Lemkin as the father of the term ‘genocide’, as well as the influence of the Nuremberg Trials. In addition, this article will focus on the historical context in which the 1948 Genocide Convention was drafted and subsequently adopted by the United Nations General Assembly as well as explore the developments that emerged in the post-1948 period, with specific attention paid not only to the drafting of the statutes of the international criminal tribunals and the International Criminal Court, but also to their jurisprudence.
{"title":"The Road to Finding a Definition for the Crime of Genocide – the Importance of the Genocide Convention","authors":"Lilla Ozoráková","doi":"10.1163/15718034-12341475","DOIUrl":"https://doi.org/10.1163/15718034-12341475","url":null,"abstract":"\u0000Today, genocide is known as “the crime of crimes”, for its fundamental implications for human morality. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as a crime perpetrated against “a national, ethnical, racial or religious group”. The same definition was also adopted verbatim by the statutes of the international criminal tribunals and courts. Although this was a successful step towards the establishment of an international regime of criminal responsibility for one of the most heinous violations of international law (as well as towards the ultimate eradication of the crime of genocide), the definition of genocide, as set out in the Genocide Convention, has often been subjected to criticism due to its limited scope. The definition in Article II of the Genocide Convention was the outcome of a complex process of negotiations and consensus, reflecting the prevailing views on genocide during the drafting of the Genocide Convention. However, in order to understand the reasoning behind the limited scope of the definition, it is necessary to examine the historical context in which the crime of genocide was conceptualized and subsequently criminalized. The aim of this article is to explore the historical background of the concept of genocide, with specific attention to the drafting processes of the most important legal instruments, including the Genocide Convention and the statutes of the international criminal courts and tribunals, to illustrate the foundations of the concept and explain the reasoning behind the current definition of genocide. In particular, this article will focus on examining the legacy of Raphael Lemkin as the father of the term ‘genocide’, as well as the influence of the Nuremberg Trials. In addition, this article will focus on the historical context in which the 1948 Genocide Convention was drafted and subsequently adopted by the United Nations General Assembly as well as explore the developments that emerged in the post-1948 period, with specific attention paid not only to the drafting of the statutes of the international criminal tribunals and the International Criminal Court, but also to their jurisprudence.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"16 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72513359","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 : 2022-07-12DOI: 10.1163/15718034-12341483
A. Legg
{"title":"Is There Method in the Margin? The Essence of Judicial Deference and the Margin of Appreciation","authors":"A. Legg","doi":"10.1163/15718034-12341483","DOIUrl":"https://doi.org/10.1163/15718034-12341483","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"22 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87671164","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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