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Fact-Finding by Trade-off: Questions of Evidence and Its Interactions with Valuation in Compensation Cases before the International Court of Justice

Abstract This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice (‘the Court’), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied.

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The ILC’s First Reading Draft Articles on ‘Immunity of State Officials from Foreign Criminal Jurisdiction’ (2022)

Abstract In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.

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Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice

Abstract Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.

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The Legitimacy of the International Court of Justice from the Vantage Point of UN Members

Abstract Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.

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Revisiting the Standard of Proof for Charges of Exceptional Gravity before the International Court of Justice

Abstract The International Court of Justice has consistently required a stricter standard of proof for ‘charges of exceptional gravity’. The Bosnia Genocide and Croatia Genocide cases saw the Court require the high standard of ‘fully conclusive’ evidence across all elements of the allegations of genocide. Despite the difficulties associated with obtaining the necessary evidence of the intent of the perpetrators to destroy, in whole or in part, a protected group to establish the commission of genocide, the Court allowed little flexibility in the application of that standard in what may have been a departure from its previous cases relating to grave charges. The Court emphasized the gravity of the allegations and the high stigmatization attached to a finding of responsibility for genocide, suggesting a strong emphasis on the consequences of a finding of responsibility for the wrongdoing State over other interests that may also have been present in the proceedings. The Court has yet to explain the rationale for the high standard of proof applied to charges of exceptional gravity in international judicial proceedings, or why it required a particularly stringent standard of proof in the Genocide cases. This raises questions about the Court’s approaches to the standard of proof and the process by which it balances different interests in judicial proceedings. As States seek out the Court’s jurisdiction for serious breaches of international law – including, for example, the pending Rohingya Genocide case – the Court’s strict approach to the standard of proof risks imposing a high bar to the enforcement of these obligations.

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The International Court of Justice and Territorial Disputes: an Updated Systematization

Abstract Over the course of the past 75 years, the International Court of Justice (ICJ) has adjudicated a total of 17 territorial disputes, building a considerable body of case law along the way. While the Court has shed light on many legal issues concerning territorial sovereignty over the years, it has never clarified its approach to territorial disputes. Bridging the gap between a 2004 analysis by Brian Sumner, who identified a three-tiered hierarchical decision rule, and modern territorial doctrine, this study aims to provide an updated attempt at systematization of the Court’s approach in its case law concerning territorial disputes. Refining Sumner’s hierarchical decision rule, the findings – while overall congruent with the basic hierarchy identified in his work – suggest that the Court’s approach revolves around a hierarchy of three tiers of territorial titles (understood broadly as sources of the right to territory), namely, legal instruments, State succession and intangibility of boundaries, and independent effectivités. Equity infra legem is used as a last resort tool for interpretation of these titles, where they themselves yield no clear result. Another source of the right to territory, unilateral conduct constituting acquiescence and/or estoppel, is relied on outside of this hierarchy, often to support a decision based on another title. A review of the entirety of the Court’s case law reveals a relatively consistent yet multi-layered approach to territorial disputes.

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