Pub Date : 2021-08-17DOI: 10.1163/15718034-12341452
Doreen Lustig
{"title":"Nationals Abroad: Globalization, Individual Rights and the Making of Modern International Law, written by Christopher A. Casey","authors":"Doreen Lustig","doi":"10.1163/15718034-12341452","DOIUrl":"https://doi.org/10.1163/15718034-12341452","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41639601","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 : 2021-08-17DOI: 10.1163/15718034-12341450
Yoshifumi Tanaka
The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.
{"title":"Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case","authors":"Yoshifumi Tanaka","doi":"10.1163/15718034-12341450","DOIUrl":"https://doi.org/10.1163/15718034-12341450","url":null,"abstract":"\u0000The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64978259","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 : 2021-08-17DOI: 10.1163/15718034-12341449
K. Zajac
The alleged lower standard of the rights of the accused under the Rome Statute compared to those guaranteed by the US Constitution was one of the most important areas of criticism of the Rome Statute by American scholars. This criticism was made in the early 2000s and was based on the text of the Rome Statute alone, before any ICC jurisprudence existed. This article draws on the 20 years of operation of the ICC to ascertain whether the judicial interpretation and application of the procedural rights of the defendant, guaranteed under the Rome Statute, have made them more compatible with their counterparts under the US Constitution. The premise of this article is that the 20 years of interpretation and application of those rights may have strengthened them to the point where the gap between the procedural guarantees under the Rome Statute and the US Constitution has become negligible. This, in turn, would make the early criticism of the ICC system obsolete, at least insofar as the legal argument is concerned. Accordingly, this paper examines existing jurisprudence of the ICC in the areas of prosecutorial disclosure obligations, admission of evidence and the examination of witnesses. This is for several reasons: firstly, the selected three rights were among those criticised by American scholars in the early 2000s as falling short of what was required under the US Constitution; secondly, unlike some other criticised rights, which reflect the ICC’s institutional design and, therefore, are unlikely to change in scope, the selected three are relatively vaguely phrased, thus making it possible to transform their meaning through judicial interpretation; thirdly, the selected rights have been sufficiently elaborated on by the ICC through case law so as to carry a meaning exceeding what the Rome Statute alone provides. The findings of the study indicate that inasmuch as the ICC’s jurisprudence has moved some aspects of the three areas under examination towards their counterparts under the US Constitution, the procedural rights of the defendant before American courts generally remain more robust.
{"title":"The Rights of the Accused under the Rome Statute and the US Bill of Rights: Has 20 Years of ICC Jurisprudence Brought Those Together?","authors":"K. Zajac","doi":"10.1163/15718034-12341449","DOIUrl":"https://doi.org/10.1163/15718034-12341449","url":null,"abstract":"\u0000The alleged lower standard of the rights of the accused under the Rome Statute compared to those guaranteed by the US Constitution was one of the most important areas of criticism of the Rome Statute by American scholars. This criticism was made in the early 2000s and was based on the text of the Rome Statute alone, before any ICC jurisprudence existed. This article draws on the 20 years of operation of the ICC to ascertain whether the judicial interpretation and application of the procedural rights of the defendant, guaranteed under the Rome Statute, have made them more compatible with their counterparts under the US Constitution. The premise of this article is that the 20 years of interpretation and application of those rights may have strengthened them to the point where the gap between the procedural guarantees under the Rome Statute and the US Constitution has become negligible. This, in turn, would make the early criticism of the ICC system obsolete, at least insofar as the legal argument is concerned. Accordingly, this paper examines existing jurisprudence of the ICC in the areas of prosecutorial disclosure obligations, admission of evidence and the examination of witnesses. This is for several reasons: firstly, the selected three rights were among those criticised by American scholars in the early 2000s as falling short of what was required under the US Constitution; secondly, unlike some other criticised rights, which reflect the ICC’s institutional design and, therefore, are unlikely to change in scope, the selected three are relatively vaguely phrased, thus making it possible to transform their meaning through judicial interpretation; thirdly, the selected rights have been sufficiently elaborated on by the ICC through case law so as to carry a meaning exceeding what the Rome Statute alone provides. The findings of the study indicate that inasmuch as the ICC’s jurisprudence has moved some aspects of the three areas under examination towards their counterparts under the US Constitution, the procedural rights of the defendant before American courts generally remain more robust.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46870573","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 : 2021-08-17DOI: 10.1163/15718034-12341453
Christopher Casey
{"title":"Veiled Power: International Law and the Private Corporation, 1886–1981, written by Doreen Lustig","authors":"Christopher Casey","doi":"10.1163/15718034-12341453","DOIUrl":"https://doi.org/10.1163/15718034-12341453","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47684852","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 : 2021-03-29DOI: 10.1163/15718034-12341441
A. Tatham
The independence of judges sitting on international courts is constrained in part by their accountability to the states that appoint them. The interaction between these two principles is particularly stark where judges are able to have their terms of office on the bench renewed, subject to the agreement of states to re-nominate and reappoint them. The present article seeks to examine this interaction, initially in the context more generally of international judicial decision-making bodies, while also considering options designed to reduce the likelihood of the reoccurrence of problems with respect to reappointments. It then provides a more detailed case study of the Norwegian reappointment saga at the EFTA Court and suggests possible ways forward designed to enhance judicial independence in this procedure.
{"title":"Reappointment to International Courts and the Case of the EFTA Court","authors":"A. Tatham","doi":"10.1163/15718034-12341441","DOIUrl":"https://doi.org/10.1163/15718034-12341441","url":null,"abstract":"\u0000The independence of judges sitting on international courts is constrained in part by their accountability to the states that appoint them. The interaction between these two principles is particularly stark where judges are able to have their terms of office on the bench renewed, subject to the agreement of states to re-nominate and reappoint them. The present article seeks to examine this interaction, initially in the context more generally of international judicial decision-making bodies, while also considering options designed to reduce the likelihood of the reoccurrence of problems with respect to reappointments. It then provides a more detailed case study of the Norwegian reappointment saga at the EFTA Court and suggests possible ways forward designed to enhance judicial independence in this procedure.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"48 1","pages":"119-149"},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79757339","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 : 2021-03-29DOI: 10.1163/15718034-12341440
A. John
The International Court of Justice (ICJ) has explicitly rejected the notion that some disputes are non-justiciable. This article argues that despite these assertions, some disputes before the Court are de facto non-justiciable. The Court’s jurisprudence shows that techniques of avoidance are used when confronted with non-justiciable issues. These avoidance techniques include the dismissal of cases on technical grounds, and the partial or non-assertion of jurisdiction, which can result in conflicting or irreconcilable jurisprudence. The non-justiciability of disputes before the ICJ arises from the Court’s judicial function, which is in turn shaped by its institutional design and the scope of its powers. However, the use of avoidance techniques to confront non-justiciable disputes may raise questions about the fairness of dispute settlement before the ICJ.
国际法院(International Court of Justice, ICJ)明确拒绝了某些争端不可审理的观点。本文认为，尽管有这些主张，法院审理的一些争端事实上是不可审理的。法院的判例表明，在面对不可审理的问题时使用回避技术。这些回避方法包括以技术理由驳回案件，以及部分或不主张管辖权，这可能导致相互冲突或不可调和的判例。国际法院审理的争端不可受理源于法院的司法职能，而法院的司法职能又由其机构设计和权力范围决定。然而，使用回避技术来面对不可审理的争端可能会对国际法院解决争端的公正性提出质疑。
{"title":"Inarticulate and Unconscious: Non-Justiciability before the International Court of Justice","authors":"A. John","doi":"10.1163/15718034-12341440","DOIUrl":"https://doi.org/10.1163/15718034-12341440","url":null,"abstract":"\u0000The International Court of Justice (ICJ) has explicitly rejected the notion that some disputes are non-justiciable. This article argues that despite these assertions, some disputes before the Court are de facto non-justiciable. The Court’s jurisprudence shows that techniques of avoidance are used when confronted with non-justiciable issues. These avoidance techniques include the dismissal of cases on technical grounds, and the partial or non-assertion of jurisdiction, which can result in conflicting or irreconcilable jurisprudence. The non-justiciability of disputes before the ICJ arises from the Court’s judicial function, which is in turn shaped by its institutional design and the scope of its powers. However, the use of avoidance techniques to confront non-justiciable disputes may raise questions about the fairness of dispute settlement before the ICJ.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"9 1","pages":"77-118"},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84279711","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 : 2021-03-29DOI: 10.1163/15718034-12341438
Yusra Suedi
The International Court of Justice routinely resolves territorial and maritime boundary disputes between States. Such disputes often carry repercussions for the lives and livelihoods of local populations living on the territories of the State litigants. This analysis seeks to examine the extent to which State litigants’ concerns for the impact of maritime disputes or territorial disputes on their local populations are factored into the Court’s decision-making process. It also seeks to identify reasons for the Court’s approach in such disputes, and to explore the potential role of the principle of equity in such contexts.
{"title":"Man, Land and Sea: Local Populations in Territorial and Maritime Disputes before the International Court of Justice","authors":"Yusra Suedi","doi":"10.1163/15718034-12341438","DOIUrl":"https://doi.org/10.1163/15718034-12341438","url":null,"abstract":"\u0000The International Court of Justice routinely resolves territorial and maritime boundary disputes between States. Such disputes often carry repercussions for the lives and livelihoods of local populations living on the territories of the State litigants. This analysis seeks to examine the extent to which State litigants’ concerns for the impact of maritime disputes or territorial disputes on their local populations are factored into the Court’s decision-making process. It also seeks to identify reasons for the Court’s approach in such disputes, and to explore the potential role of the principle of equity in such contexts.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"121 1","pages":"30-53"},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80218048","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 : 2021-03-29DOI: 10.1163/15718034-12341442
K. Bradley
This first part of a two-part article examines the rulings of the General Court and the Court of Justice concerning the irregular appointment in 2016 of a judge to the Union’s Civil Service Tribunal (now abolished). The CJEU was acting more or less in tandem with the European Court of Human Rights in the case of Ástráðsson v. Iceland; between them, these courts have confirmed for their respective legal orders that the right to a fair trial before a “tribunal established by law” includes a requirement that the judge(s) be appointed in accordance with the predetermined procedure. This requirement is not, however, absolute, but seeks ultimately to safeguard the independence and impartiality of the judiciary; it must therefore be balanced with other fundamental values, such as legal certainty and the irremovability of judges. The Simpson ruling may also have a certain resonance at the national level, as well as showcasing the CJEU’s remarkable “review” procedure, now in abeyance.
{"title":"Appointment and Dis-Appointment at the CJEU: Part I – The FV/Simpson Litigation","authors":"K. Bradley","doi":"10.1163/15718034-12341442","DOIUrl":"https://doi.org/10.1163/15718034-12341442","url":null,"abstract":"\u0000This first part of a two-part article examines the rulings of the General Court and the Court of Justice concerning the irregular appointment in 2016 of a judge to the Union’s Civil Service Tribunal (now abolished). The CJEU was acting more or less in tandem with the European Court of Human Rights in the case of Ástráðsson v. Iceland; between them, these courts have confirmed for their respective legal orders that the right to a fair trial before a “tribunal established by law” includes a requirement that the judge(s) be appointed in accordance with the predetermined procedure. This requirement is not, however, absolute, but seeks ultimately to safeguard the independence and impartiality of the judiciary; it must therefore be balanced with other fundamental values, such as legal certainty and the irremovability of judges. The Simpson ruling may also have a certain resonance at the national level, as well as showcasing the CJEU’s remarkable “review” procedure, now in abeyance.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"7 1","pages":"150-165"},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76991735","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 : 2021-03-29DOI: 10.1163/15718034-12341443
A. Hamann
The current column covers selected procedural and institutional developments in international trade dispute settlement in 2020. During the reporting period, World Trade Organization (WTO) dispute settlement has been facing unprecedented challenges due to the collapse of the Appellate Body. While this calls for a systemic reflection in the WTO forum regarding the future not only of appellate review but of the entire dispute settlement system, the current unavailability of the Appellate Body has triggered WTO Members into improvising temporary solutions. At the same time, some of them have equally seemed to turn to free trade agreements (FTAs) or otherwise to pursue solutions outside of the multilateral forum.
{"title":"Living without the WTO Appellate Body – Procedural Developments in International Trade Dispute Settlement","authors":"A. Hamann","doi":"10.1163/15718034-12341443","DOIUrl":"https://doi.org/10.1163/15718034-12341443","url":null,"abstract":"\u0000The current column covers selected procedural and institutional developments in international trade dispute settlement in 2020. During the reporting period, World Trade Organization (WTO) dispute settlement has been facing unprecedented challenges due to the collapse of the Appellate Body. While this calls for a systemic reflection in the WTO forum regarding the future not only of appellate review but of the entire dispute settlement system, the current unavailability of the Appellate Body has triggered WTO Members into improvising temporary solutions. At the same time, some of them have equally seemed to turn to free trade agreements (FTAs) or otherwise to pursue solutions outside of the multilateral forum.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":"32 1","pages":"166-190"},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84391159","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 : 2021-03-29DOI: 10.1163/15718034-12341437
Marie Lemey
Scholars and State counsels have often pointed out the fact that incidental proceedings could be abused, especially when they serve as dilatory mechanisms. While the International Court of Justice has never followed up on such claims, the recent interest in the concept of abuse of process may bring this issue back into focus. The purpose of the present article is to examine whether the notion of abuse of process could actually be applied in such cases, at a time when many types of conduct seem to be loosely labelled as abusive. It highlights the difficulties to reach such a conclusion as well as the necessity for clarification from the Court on what may constitute an abuse of process.
{"title":"Incidental Proceedings before the International Court of Justice: The Fine Line between “Litigation Strategy” and “Abuse of Process”","authors":"Marie Lemey","doi":"10.1163/15718034-12341437","DOIUrl":"https://doi.org/10.1163/15718034-12341437","url":null,"abstract":"\u0000Scholars and State counsels have often pointed out the fact that incidental proceedings could be abused, especially when they serve as dilatory mechanisms. While the International Court of Justice has never followed up on such claims, the recent interest in the concept of abuse of process may bring this issue back into focus. The purpose of the present article is to examine whether the notion of abuse of process could actually be applied in such cases, at a time when many types of conduct seem to be loosely labelled as abusive. It highlights the difficulties to reach such a conclusion as well as the necessity for clarification from the Court on what may constitute an abuse of process.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47061503","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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