Pub Date : 2020-12-07DOI: 10.1163/15718034-12341439
M. Longobardo
This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.
{"title":"States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings","authors":"M. Longobardo","doi":"10.1163/15718034-12341439","DOIUrl":"https://doi.org/10.1163/15718034-12341439","url":null,"abstract":"\u0000This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43422672","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 : 2020-11-27DOI: 10.1163/15718034-12341428
R. Kolb
Since 2009, the ICJ has included a plausibility requirement as a condition for indicating provisional measures as demanded by the applicant. What that criterion exactly means and how it is to be applied remains uncertain. This short contribution delves into some blind spots, which have not to date been meaningfully discussed either by the Court or in legal writings. The two main issues turn around the meaning of “preservation of rights” and the applicable standard for determining plausibility. In particular the rights-limb is replete with legal intricacies. Further, some ancillary aspects are discussed, e.g. the link of plausibility with jurisdictional issues. Various conclusions are drawn and some preferred interpretations uttered on these questions.
{"title":"Digging Deeper into the “Plausibility of Rights”-Criterion in the Provisional Measures Jurisprudence of the ICJ","authors":"R. Kolb","doi":"10.1163/15718034-12341428","DOIUrl":"https://doi.org/10.1163/15718034-12341428","url":null,"abstract":"\u0000Since 2009, the ICJ has included a plausibility requirement as a condition for indicating provisional measures as demanded by the applicant. What that criterion exactly means and how it is to be applied remains uncertain. This short contribution delves into some blind spots, which have not to date been meaningfully discussed either by the Court or in legal writings. The two main issues turn around the meaning of “preservation of rights” and the applicable standard for determining plausibility. In particular the rights-limb is replete with legal intricacies. Further, some ancillary aspects are discussed, e.g. the link of plausibility with jurisdictional issues. Various conclusions are drawn and some preferred interpretations uttered on these questions.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74192552","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 : 2020-11-27DOI: 10.1163/15718034-12341430
S. Weber
Claims for compensation of material damages in investment arbitration are well known – they are part of every dispute. Tribunals deal extensively with such claims and do not accord much attention to another type of damages: moral damages. Until today, no uniform solution has been found. There seems to be stark disagreement between arbitral tribunals on how to deal with a claim for moral damages. This article sheds light on moral damages and proposes a possible solution under international law. To this end, it introduces the concept of moral damages and its history in international disputes. After having set out such general overview, it then applies the concept to investment arbitration by analysing five issues arbitral tribunals have been faced with when confronted by a claim for moral damages. Finally, it comments on the most prominent awards and provides an outlook for a possible solution.
{"title":"Demystifying Moral Damages in International Investment Arbitration","authors":"S. Weber","doi":"10.1163/15718034-12341430","DOIUrl":"https://doi.org/10.1163/15718034-12341430","url":null,"abstract":"\u0000Claims for compensation of material damages in investment arbitration are well known – they are part of every dispute. Tribunals deal extensively with such claims and do not accord much attention to another type of damages: moral damages. Until today, no uniform solution has been found. There seems to be stark disagreement between arbitral tribunals on how to deal with a claim for moral damages. This article sheds light on moral damages and proposes a possible solution under international law. To this end, it introduces the concept of moral damages and its history in international disputes. After having set out such general overview, it then applies the concept to investment arbitration by analysing five issues arbitral tribunals have been faced with when confronted by a claim for moral damages. Finally, it comments on the most prominent awards and provides an outlook for a possible solution.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48685711","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 : 2020-11-27DOI: 10.1163/15718034-12341429
Emanuele Cimiotta
In recent times, claims concerning violations of the International Convention on the Elimination of All Forms of Racial Discrimination have been brought by States parties to the Convention to the attention of the International Court of Justice, and, for the first time in the course of United Nations human rights treaty bodies, to the Committee on the Elimination of Racial Discrimination. Relations between the different mechanisms of the sophisticated compliance control system set up by the Convention have been put to the test. In particular, the Qatar v. United Arab Emirates case raises the complex issue of parallel proceedings which, in the author’s opinion, can be dealt with by solutions offered by the Convention itself, rather than by the lis pendens principle.
{"title":"Parallel Proceedings before the International Court of Justice and the Committee on the Elimination of Racial Discrimination","authors":"Emanuele Cimiotta","doi":"10.1163/15718034-12341429","DOIUrl":"https://doi.org/10.1163/15718034-12341429","url":null,"abstract":"\u0000In recent times, claims concerning violations of the International Convention on the Elimination of All Forms of Racial Discrimination have been brought by States parties to the Convention to the attention of the International Court of Justice, and, for the first time in the course of United Nations human rights treaty bodies, to the Committee on the Elimination of Racial Discrimination. Relations between the different mechanisms of the sophisticated compliance control system set up by the Convention have been put to the test. In particular, the Qatar v. United Arab Emirates case raises the complex issue of parallel proceedings which, in the author’s opinion, can be dealt with by solutions offered by the Convention itself, rather than by the lis pendens principle.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78193296","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 : 2020-11-27DOI: 10.1163/15718034-12341431
Juan-Pablo Perez-Leon-Acevedo
In the last decade, the ECCC has ordered reparations for victims of the Khmer Rouge’s mass atrocities committed in Cambodia during the 1970s. Various scholars have examined those reparations ordered by the ECCC. Yet, this is the first academic piece to assess the ECCC’s reparation modalities under the UN Reparation Principles, which contain key standards on reparations for victims of atrocities. Overall, the ECCC has ordered important rehabilitation, satisfaction and guarantees of non-repetition measures to redress victims’ harm. This is a meaningful current development with regard to reparations for victims of atrocities. However, the ECCC’s reparation law and practice exhibits some important deficits under the UN Reparation Principles. At the ECCC, restitution and compensation are excluded and the range of guarantees of non-repetition has been limited. Nonetheless, these deficits must be considered within the ECCC’s mandate as an internationalised criminal court.
{"title":"Reparation Modalities at the Extraordinary Chambers in the Courts of Cambodia (ECCC)","authors":"Juan-Pablo Perez-Leon-Acevedo","doi":"10.1163/15718034-12341431","DOIUrl":"https://doi.org/10.1163/15718034-12341431","url":null,"abstract":"\u0000In the last decade, the ECCC has ordered reparations for victims of the Khmer Rouge’s mass atrocities committed in Cambodia during the 1970s. Various scholars have examined those reparations ordered by the ECCC. Yet, this is the first academic piece to assess the ECCC’s reparation modalities under the UN Reparation Principles, which contain key standards on reparations for victims of atrocities. Overall, the ECCC has ordered important rehabilitation, satisfaction and guarantees of non-repetition measures to redress victims’ harm. This is a meaningful current development with regard to reparations for victims of atrocities. However, the ECCC’s reparation law and practice exhibits some important deficits under the UN Reparation Principles. At the ECCC, restitution and compensation are excluded and the range of guarantees of non-repetition has been limited. Nonetheless, these deficits must be considered within the ECCC’s mandate as an internationalised criminal court.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90820263","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 : 2020-11-27DOI: 10.1163/15718034-12341435
Hanno Wehland
{"title":"Investor-State Dispute Settlement and National Courts: Current Framework and Reform Options, written by Gabrielle Kaufmann-Kohler and Michele Potestà","authors":"Hanno Wehland","doi":"10.1163/15718034-12341435","DOIUrl":"https://doi.org/10.1163/15718034-12341435","url":null,"abstract":"","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79131623","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 : 2020-11-27DOI: 10.1163/15718034-12341432
M. J. Nkhata
In Dexter Eddie Johnson v. Republic of Ghana, the African Court on Human and Peoples’ Rights (the Court), for only the second time in its history, applied Article 56(7) of the African Charter on Human and Peoples’ Rights (the Charter) to declare a case inadmissible. The Court reasoned that the case was inadmissible since the applicant had first approached, and obtained a determination, from the United Nations Human Rights Committee before lodging his case with the Court. This article analyses the Court’s decision and attempts to unpack the Court’s interpretation and application of the doctrine of res judicata, which is the essence of the requirement in Article 56(7) of the Charter.
{"title":"Res judicata and the Admissibility of Applications before the African Court on Human and Peoples’ Rights: a Fresh Look at Dexter Eddie Johnson v. Republic of Ghana","authors":"M. J. Nkhata","doi":"10.1163/15718034-12341432","DOIUrl":"https://doi.org/10.1163/15718034-12341432","url":null,"abstract":"\u0000In Dexter Eddie Johnson v. Republic of Ghana, the African Court on Human and Peoples’ Rights (the Court), for only the second time in its history, applied Article 56(7) of the African Charter on Human and Peoples’ Rights (the Charter) to declare a case inadmissible. The Court reasoned that the case was inadmissible since the applicant had first approached, and obtained a determination, from the United Nations Human Rights Committee before lodging his case with the Court. This article analyses the Court’s decision and attempts to unpack the Court’s interpretation and application of the doctrine of res judicata, which is the essence of the requirement in Article 56(7) of the Charter.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78495689","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 : 2020-11-27DOI: 10.1163/15718034-12341433
G. Sacerdoti
One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author’s past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels “absent cogent reasons” is in line with the practice of other international courts and tribunals.
{"title":"The Authority of “Precedent” in International Adjudication: the Contentious Case of the WTO Appellate Body’s Practice","authors":"G. Sacerdoti","doi":"10.1163/15718034-12341433","DOIUrl":"https://doi.org/10.1163/15718034-12341433","url":null,"abstract":"\u0000One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author’s past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels “absent cogent reasons” is in line with the practice of other international courts and tribunals.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77894420","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 : 2020-08-26DOI: 10.1163/15718034-12341425
Hélène Tigroudja
After exploring the most salient political and institutional issues facing international human rights courts and bodies, this column reviews some of their key procedural developments in 2019, focusing on four specific aspects: the coordination and (dis-)harmony between the multiple mechanisms; the more or less extensive scope of their jurisdiction; the parties’ potential instrumentalization of the proceedings; and States’ compliance with the international decisions.
{"title":"Procedural Developments at International Human Rights Courts and Bodies","authors":"Hélène Tigroudja","doi":"10.1163/15718034-12341425","DOIUrl":"https://doi.org/10.1163/15718034-12341425","url":null,"abstract":"\u0000After exploring the most salient political and institutional issues facing international human rights courts and bodies, this column reviews some of their key procedural developments in 2019, focusing on four specific aspects: the coordination and (dis-)harmony between the multiple mechanisms; the more or less extensive scope of their jurisdiction; the parties’ potential instrumentalization of the proceedings; and States’ compliance with the international decisions.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87476418","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 : 2020-08-26DOI: 10.1163/15718034-12341422
J. Hébert
There is a need − both conceptual and practical − to distinguish clearly the procedures applicable to interpretation and revision at the ICJ. To do so, the article first undertakes an analysis of the relevant provisions of the Statute – Articles 60 and 61 – and of the Rules of Court. The differences between both proceedings with regard to their introduction before the Court, the ICJ’s jurisdiction to consider them, and their different admissibility requirements will be addressed. Then, it considers issues pertaining to the relationship between an original judgment – the one to be interpreted or revised – and the judgment in interpretation or revision. The pivotal role of the principle of res judicata is taken into account. Furthermore, the piece attempts to attribute a proper characterisation to interpretation and revision proceedings, as either new cases, incidental proceedings, or a hybrid conception between those two more conventional denominations.
{"title":"Distinguishing Interpretation and Revision Proceedings at the International Court of Justice","authors":"J. Hébert","doi":"10.1163/15718034-12341422","DOIUrl":"https://doi.org/10.1163/15718034-12341422","url":null,"abstract":"\u0000There is a need − both conceptual and practical − to distinguish clearly the procedures applicable to interpretation and revision at the ICJ. To do so, the article first undertakes an analysis of the relevant provisions of the Statute – Articles 60 and 61 – and of the Rules of Court. The differences between both proceedings with regard to their introduction before the Court, the ICJ’s jurisdiction to consider them, and their different admissibility requirements will be addressed. Then, it considers issues pertaining to the relationship between an original judgment – the one to be interpreted or revised – and the judgment in interpretation or revision. The pivotal role of the principle of res judicata is taken into account. Furthermore, the piece attempts to attribute a proper characterisation to interpretation and revision proceedings, as either new cases, incidental proceedings, or a hybrid conception between those two more conventional denominations.","PeriodicalId":42613,"journal":{"name":"Law & Practice of International Courts and Tribunals","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84173774","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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