Pub Date : 2022-03-15DOI: 10.1163/15718034-12341471
A. Miron
{"title":"La protection des intérêts juridiques de l’État tiers dans le procès de délimitation maritime, written by Lorenzo Palestini","authors":"A. Miron","doi":"10.1163/15718034-12341471","DOIUrl":"https://doi.org/10.1163/15718034-12341471","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77559498","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 : 2022-03-15DOI: 10.1163/15718034-12341470
Nilufer Oral, Massimo Lando
Only two decisions in law of the sea dispute settlement cases were issued in 2021. Not a single arbitral award was issued in 2021, and the only case decided by the International Court of Justice was on the merits in the maritime dispute between Somalia and Kenya. Finally, a Special Chamber of the International Tribunal for the Law of the Sea rendered a judgment on preliminary objections in the maritime dispute between Mauritius and the Maldives.
{"title":"International Procedure between Past and Future – Procedural Developments in Law of the Sea Dispute Settlement in 2021","authors":"Nilufer Oral, Massimo Lando","doi":"10.1163/15718034-12341470","DOIUrl":"https://doi.org/10.1163/15718034-12341470","url":null,"abstract":"\u0000Only two decisions in law of the sea dispute settlement cases were issued in 2021. Not a single arbitral award was issued in 2021, and the only case decided by the International Court of Justice was on the merits in the maritime dispute between Somalia and Kenya. Finally, a Special Chamber of the International Tribunal for the Law of the Sea rendered a judgment on preliminary objections in the maritime dispute between Mauritius and the Maldives.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90396090","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 : 2022-03-15DOI: 10.1163/15718034-12341466
Gian Maria Farnelli
Taking steps from Judge Higgins’ invitation to the ICJ “mak[ing] clear what standards of proof it requires to establish what sorts of facts”, the contribution addresses the Court’s case law with a view to verifying the degree of consistency in its practice. The study comes in three parts. First, the absence of rules on the standard of proof in litigation before the ICJ is addressed, and the Court’s inherent power to choose the standard of proof is upheld. Second, the ICJ case law is addressed from which a highly flexible approach to the standard of proof is inferred. In particular, a two-tier approach in the matter is highlighted with regard to cases in which all the disputing parties appear, whereas the Court appears to follow a single-tier analysis in cases of non-appearance. Lastly, some concluding remarks are provided, highlighting the accordance of such a flexible approach with general principles of procedural law.
{"title":"Consistency in the ICJ’s Approach to the Standard of Proof: An Appraisal of the Court’s Flexibility","authors":"Gian Maria Farnelli","doi":"10.1163/15718034-12341466","DOIUrl":"https://doi.org/10.1163/15718034-12341466","url":null,"abstract":"\u0000Taking steps from Judge Higgins’ invitation to the ICJ “mak[ing] clear what standards of proof it requires to establish what sorts of facts”, the contribution addresses the Court’s case law with a view to verifying the degree of consistency in its practice. The study comes in three parts. First, the absence of rules on the standard of proof in litigation before the ICJ is addressed, and the Court’s inherent power to choose the standard of proof is upheld. Second, the ICJ case law is addressed from which a highly flexible approach to the standard of proof is inferred. In particular, a two-tier approach in the matter is highlighted with regard to cases in which all the disputing parties appear, whereas the Court appears to follow a single-tier analysis in cases of non-appearance. Lastly, some concluding remarks are provided, highlighting the accordance of such a flexible approach with general principles of procedural law.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87490558","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 : 2022-03-15DOI: 10.1163/15718034-12341472
Charles-Emmanuel Côté
{"title":"Le tiers impartial et indépendant en droit international. Juge, arbitre, médiateur, conciliateur, written by Catherine Kessedjian","authors":"Charles-Emmanuel Côté","doi":"10.1163/15718034-12341472","DOIUrl":"https://doi.org/10.1163/15718034-12341472","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75635793","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 : 2022-03-15DOI: 10.1163/15718034-12341465
Kit De Vriese
None of the principles of treaty interpretation is so often invoked and at the same time so shrouded in mystery as the treaty’s object and purpose. Following the International Court of Justice, several scholars have tried to determine common (interpretive) principles to identify the object and purpose of a particular treaty. However, even the most “demystifying” accounts of treaty interpretation have not been able to clarify the concept. The few accounts that did try to identify such principles arrived back at the start of their journey, replacing veils rather than removing them. The result is the now widely accepted and proclaimed yet circular proposition that “the object and purpose of a treaty (provision) is determined in light of all its provisions as a whole”. This article identifies some clear(er) principles, which can be used by academics and practitioners. It argues that the concept is less open-ended than commonly assumed.
{"title":"How to?: A Methodological Guide to Identify a Treaty’s Object and Purpose","authors":"Kit De Vriese","doi":"10.1163/15718034-12341465","DOIUrl":"https://doi.org/10.1163/15718034-12341465","url":null,"abstract":"\u0000None of the principles of treaty interpretation is so often invoked and at the same time so shrouded in mystery as the treaty’s object and purpose. Following the International Court of Justice, several scholars have tried to determine common (interpretive) principles to identify the object and purpose of a particular treaty. However, even the most “demystifying” accounts of treaty interpretation have not been able to clarify the concept. The few accounts that did try to identify such principles arrived back at the start of their journey, replacing veils rather than removing them. The result is the now widely accepted and proclaimed yet circular proposition that “the object and purpose of a treaty (provision) is determined in light of all its provisions as a whole”. This article identifies some clear(er) principles, which can be used by academics and practitioners. It argues that the concept is less open-ended than commonly assumed.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74214773","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 : 2022-03-15DOI: 10.1163/15718034-12341469
K. Bradley
This second and concluding part of a two-part article considers the annulment actions by Advocate General Sharpston of the CJEU seeking to challenge the premature termination of her term of office as a result of a decision of the Member State governments, following withdrawal of the United Kingdom from the European Union. While in its case law the Court of Justice has been in the vanguard in ensuring the protection of judicial independence in the courts of the Member States and the right of judges to a review of decisions entailing their dismissal, Ms. Sharpston’s proceedings were rejected by both the General Court and on appeal the Court of Justice essentially on grounds of lack of jurisdiction. The Courts’ reasoning is incomplete and unconvincing, and doubts remain as to whether the former Advocate General has been afforded effective judicial protection of her claimed right to finish out her term of office.
{"title":"Appointment and Dis-Appointment at the CJEU: Part II – The Sharpston Litigation","authors":"K. Bradley","doi":"10.1163/15718034-12341469","DOIUrl":"https://doi.org/10.1163/15718034-12341469","url":null,"abstract":"\u0000This second and concluding part of a two-part article considers the annulment actions by Advocate General Sharpston of the CJEU seeking to challenge the premature termination of her term of office as a result of a decision of the Member State governments, following withdrawal of the United Kingdom from the European Union. While in its case law the Court of Justice has been in the vanguard in ensuring the protection of judicial independence in the courts of the Member States and the right of judges to a review of decisions entailing their dismissal, Ms. Sharpston’s proceedings were rejected by both the General Court and on appeal the Court of Justice essentially on grounds of lack of jurisdiction. The Courts’ reasoning is incomplete and unconvincing, and doubts remain as to whether the former Advocate General has been afforded effective judicial protection of her claimed right to finish out her term of office.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77743084","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 : 2022-03-15DOI: 10.1163/15718034-12341468
T. Papanastasiou
This article focuses on human rights arguments raised in investment arbitration, and examines their role in the adjudication of investment disputes. It is indicated that the rejection of human rights arguments is not necessarily based on the inapplicability of human rights claims to the investment arbitration process. As shown in several cases, arbitral tribunals refused to accept human rights arguments, mainly because the parties to the dispute failed to demonstrate any relevance or impact of their claim on the investment at stake. Still, no solid legal reasoning can be noticed when tribunals rejected the relevance of human rights. Nevertheless, even if the current legal framework does not favour further involvement of human rights-based claims, we observe several developments in the treaty making practices. Such practices seek to “harmonize” human rights concerns with the international investment regime by introducing corporate social responsibility (CSR) standards or by including specific provisions relating to human rights.
{"title":"The Role of Human Rights in International Investment Arbitration: Arguments Raised by the Parties and Procedural Implications","authors":"T. Papanastasiou","doi":"10.1163/15718034-12341468","DOIUrl":"https://doi.org/10.1163/15718034-12341468","url":null,"abstract":"\u0000This article focuses on human rights arguments raised in investment arbitration, and examines their role in the adjudication of investment disputes. It is indicated that the rejection of human rights arguments is not necessarily based on the inapplicability of human rights claims to the investment arbitration process. As shown in several cases, arbitral tribunals refused to accept human rights arguments, mainly because the parties to the dispute failed to demonstrate any relevance or impact of their claim on the investment at stake. Still, no solid legal reasoning can be noticed when tribunals rejected the relevance of human rights. Nevertheless, even if the current legal framework does not favour further involvement of human rights-based claims, we observe several developments in the treaty making practices. Such practices seek to “harmonize” human rights concerns with the international investment regime by introducing corporate social responsibility (CSR) standards or by including specific provisions relating to human rights.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85239028","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 : 2022-03-15DOI: 10.1163/15718034-12341467
Brian E. McGarry, Yusra Suedi
The present article explores the premise that the participation of non-State actors may in some instances be necessary to the conduct of contentious or advisory proceedings before inter-State courts and tribunals. It first considers whether such necessity may be directly asserted as a legal requirement, in the absence of lex specialis treaty mechanisms or party consent. The article thus considers the potential to apply general principles of law, customary international law, and doctrinal concepts to this question. Unsatisfied with reliance on the stated legal considerations of international courts and tribunals, however, it turns to assess the root causes of such necessity, beneath pronouncements of legal sources and doctrine. The authors identify these as practicality – which speaks to what a court or tribunal must do to fulfil its mandate today – and legitimacy, which speaks to what it should do to ensure that its mandate is respected tomorrow.
{"title":"Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals","authors":"Brian E. McGarry, Yusra Suedi","doi":"10.1163/15718034-12341467","DOIUrl":"https://doi.org/10.1163/15718034-12341467","url":null,"abstract":"\u0000The present article explores the premise that the participation of non-State actors may in some instances be necessary to the conduct of contentious or advisory proceedings before inter-State courts and tribunals. It first considers whether such necessity may be directly asserted as a legal requirement, in the absence of lex specialis treaty mechanisms or party consent. The article thus considers the potential to apply general principles of law, customary international law, and doctrinal concepts to this question. Unsatisfied with reliance on the stated legal considerations of international courts and tribunals, however, it turns to assess the root causes of such necessity, beneath pronouncements of legal sources and doctrine. The authors identify these as practicality – which speaks to what a court or tribunal must do to fulfil its mandate today – and legitimacy, which speaks to what it should do to ensure that its mandate is respected tomorrow.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87150297","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 : 2022-03-15DOI: 10.1163/15718034-12341464
Marco Dimetto
More and more frequently, states resort to the ICJ, claiming the violation of international treaties and attempting to ground the jurisdiction of the Court on compromissory clauses contained therein. Despite the growing number of such cases, an analysis of recently rendered judgments on preliminary objections demonstrates that until now the Court has been unable or unwilling to identify and apply a coherent jurisdictional test to assess its jurisdiction ratione materiae. Some suggestions are formulated as for the test that the Court should apply to determine whether the claims presented by the applicant genuinely fall within the provisions of the international treaty containing the compromissory clause vel non.
{"title":"“To Fall, or Not to Fall, That Is the (Preliminary) Question”: Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at the ICJ","authors":"Marco Dimetto","doi":"10.1163/15718034-12341464","DOIUrl":"https://doi.org/10.1163/15718034-12341464","url":null,"abstract":"\u0000More and more frequently, states resort to the ICJ, claiming the violation of international treaties and attempting to ground the jurisdiction of the Court on compromissory clauses contained therein. Despite the growing number of such cases, an analysis of recently rendered judgments on preliminary objections demonstrates that until now the Court has been unable or unwilling to identify and apply a coherent jurisdictional test to assess its jurisdiction ratione materiae. Some suggestions are formulated as for the test that the Court should apply to determine whether the claims presented by the applicant genuinely fall within the provisions of the international treaty containing the compromissory clause vel non.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79807723","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 : 2021-11-29DOI: 10.1163/15718034-12341455
Haris Jamil
The arbitral award in The “Enrica Lexie” Incident (Italy v. India) brings to the fore the issue of assigning a name to a case. To contextualise India’s contention regarding the name, The “Enrica Lexie” Incident, in this article, I outline the law and practice regarding assigning names to cases by different international judicial bodies (ICJ, ITLOS, WTO and PCA). Examining India’s objection to the name, I argue that the name of the case does not capture the subject matter of the dispute accurately and emanates from the mainstream view of international law. The name prioritises an Italian flagged vessel, owned by a company engaged in international commerce and navigating under the protection of the Italian navy, over a fishing vessel owned by private individuals. The name reinforces a state-centric view of international law in which the victims of the incident do not picture.
{"title":"Does the Name of a Case Matter?","authors":"Haris Jamil","doi":"10.1163/15718034-12341455","DOIUrl":"https://doi.org/10.1163/15718034-12341455","url":null,"abstract":"\u0000The arbitral award in The “Enrica Lexie” Incident (Italy v. India) brings to the fore the issue of assigning a name to a case. To contextualise India’s contention regarding the name, The “Enrica Lexie” Incident, in this article, I outline the law and practice regarding assigning names to cases by different international judicial bodies (ICJ, ITLOS, WTO and PCA). Examining India’s objection to the name, I argue that the name of the case does not capture the subject matter of the dispute accurately and emanates from the mainstream view of international law. The name prioritises an Italian flagged vessel, owned by a company engaged in international commerce and navigating under the protection of the Italian navy, over a fishing vessel owned by private individuals. The name reinforces a state-centric view of international law in which the victims of the incident do not picture.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43037759","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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