International Court Of Justice Research Articles

Reasonableness: a guiding light—A probe into the World Court’s landmark judgment on substantive standards of investment protection and its takeaways for investment treaty tribunals

Abstract In its recent Judgement on Certain Iranian Assets, the International Court of Justice (ICJ) extensively addressed various international investment law issues that arose from the interpretation and application of an FCN (Friendship, Commerce, and Navigation). This represents a rare instance of the World Court addressing such matters to such a great extent. Chief amongst the Court’s holdings was the test put forward by the ICJ for assessing the ‘reasonableness’ of state measures for the purpose of evaluating their compliance with international standards of investment protection such as ‘fair and equitable treatment’ and ‘non-expropriation’. Acknowledging a trend in investment treaty jurisprudence, the Court went on to introduce more concrete yardsticks for examining the ‘reasonableness’ of state measures. The ICJ’s holdings on this matter could contribute to the enhanced ‘certainty’ and ‘predictability’ in decisions concerning ‘fair and equitable treatment’ standard and ‘non-expropriation’ obligation. The application of the tests of ‘reasonableness’ formulated by the ICJ in the field of investment treaty law could provide states with a greater margin of appreciation when exercising their ‘right to regulate’. In practical terms, as opposed to a stringent ‘proportionality’ analysis, the ICJ’s formulation of ‘reasonableness’ would mean an alleviated burden of proof for states to justify the propriety of their measures towards foreign investors.

"What Kind of Court Is This?": Perceptions of International Justice Among Rohingya Refugees

ABSTRACT: In the context of mass atrocities, the legitimacy of institutions for international justice—such as the International Criminal Court and International Court of Justice—is based on the assumption that they vindicate demands for accountability by the survivors of horrific human rights violations. Yet, notwithstanding advances in victim representation at these Hague-based courts, victim-centered justice remains elusive. This article contributes to centering the voices of survivors in their specific cultural contexts, against the backdrop of existing efforts that too often render invisible their perspectives. Through semi-structured interviews, conducted in late 2022, with 444 Rohingya survivors of genocide who have fled Myanmar to refugee camps in neighboring Bangladesh, we attempt to convey the priorities of these survivors situated within their cultural understanding of justice. We contextualize the empirical data gathered from the survey within Rohingyas' lived experiences of persecution in Myanmar, their cultural framings of communal justice, and their current reality of prolonged displacement in refugee camps in Bangladesh. The article concludes by describing the implications of this survey's findings on future engagement of the Rohingya in international justice processes, and a wider reflection on how grassroots perspectives can and should shape the global justice discourse.

Upotreba istorije, poricanje zločina i koncept nekažnjivosti u Republici Srpskoj (1992–2022)

The article analyzes how Republika Srpska publicly articulated its stance regarding the July 1992 massacre in Srebrenica, which the International Court of Justice and the International Tribunal for the former Yugoslavia both classified as genocide. It assesses how this Bosnian entity grapples with and communicates its response to this internationally recognized atrocity within the public domain. The conflicting conclusions of three reports on Srebrenica—issued by the Bureau of the RS Government for Relations with the Hague Tribunal of the Government of Republika Srpska (2002), the Commission for the Investigation of Events in and around Srebrenica from July 10 to 19, 1995 (2004), and the Independent International Commission for Research on the Suffering of All Peoples in the Srebrenica Region in the Period 1992–1995 (2021) — illustrate the ongoing initiatives of local communities to memorialize the 1992–1995 war and reflect shifts in official political discourse.

Litigating Collective Obligations before the International Court of Justice: Progress, Challenges and Prospects

Abstract The International Court of Justice (ICJ) has generally dealt with questions raised by cases concerning the common interests of States in an episodic, fragmentary, and at times contradictory manner. However, a number of significant rulings have thus far been given, and recent developments have brought the issue of public interest litigation back into the spotlight. This article aims to bring together into a coherent and systematic framework the relevant data that can be drawn from the ICJ’s contentious case law. To this end, the examination is divided into three parts, distinguishing respectively between questions that can be considered to have been already resolved (i.e. questions concerning the jurisdiction in public interest cases), those that are currently being clarified (i.e. the issue of standing to institute proceedings for the protection of common interests) and those that are still entirely open (i.e. the qualification of the legal position of the omnes, the relationship between the standing of the specially affected State and that of the other omnes, and the remedies that the omnes are entitled to claim from the wrongdoer). The article highlights the ICJ’s unwillingness to address the question as to whether Article 48 ARSIWA may currently be deemed to reflect customary international law and some inconsistencies between the approaches of the ILC and the ICJ as regards collective obligations. This proves that, despite considerable progress in recent case law, the legal regime of collective obligations remains far from being clear, and many aspects still deserve close scrutiny.

The Decaying of International Institutions - Politicised Inaction and Whataboutism

Whataboutism has destroyed the political, economic, media and social spheres of human life. It has made sure that there is no fruitful exchange of ideas or distribution of knowledge but it has converted debates and discussions into futile exercises of shaming, name calling and generating sensationalism. This paper sets a premise based on Public, Nationalist and Neo-liberal events to point out the development of the ideology of Whataboutism. Through an in-depth literary and objective review of political changes in the International institutions the paper works to establish a cause and effect relationship between the internal disintegration of International bodies and Whataboutist narratives in the public forum. The paper focuses on three institutions - United Nations (political disposition), and International Court of Justice (legal disposition), to show the overall collapse of the International world order, leaving the local geographical bodies with power vacuums and broken financial tracks. It attempts to draw a parallel between the League of Nations and United Nations to show the signs and markings of obsoletion and inaction. To present the gravity of the situation, the paper also supplies subject matter from three important geo-political situations - namely Israeli-Palestinian Crisis, Yemen Crisis and the Sudan-Darfur conflict for the United Nations jurisdiction.

In Fairness to Nottebohm: Nationality in an Age of Globalization

Abstract The Nottebohm judgment from the International Court of Justice (ICJ) has recently come under attack in the context of the European Commission's position on “golden passports” programmes. The judgment has long received intense criticism from a consensus of scholars. This article challenges the conventional wisdom of Nottebohm. The ICJ did not, as critics argue, depart from international law on nationality, nor did it seek to create an international rule based on a “genuine link” requirement. A closer look at the majority's reasoning reveals that the ICJ's conception of nationality as something more than a mere formal classification was prompted by problems that can arise precisely from the phenomenon of globalization, including the instrumentalization of nationality. It further shows that the “substance-over-form” approach adopted by Nottebohm may, or already does, operate in more contemporary contexts.

War in Ukraine and the International Court of Justice: Provisional Measures and the Third-Party Right to Intervene in Proceedings

Abstract At the time of writing, the war in Ukraine was the subject of ICJ proceedings in the Allegations of Genocide case. As the case title suggests, however, the key issue before the ICJ is not Russia’s use of force, but the question of genocide. Restrictions on its jurisdiction have led to the ICJ facing a serious dilemma between, on the one hand, having to meet unprecedented high levels of expectation and political pressure to stop Russia’s military action and, on the other, inherent legal constraints in maintaining its judicial character. This article elucidates how the ICJ has overcome procedural hurdles, including the requirements for provisional measures and intervention, to reach conclusions in favour of Ukraine. It also highlights the procedural challenges arising from the acrobatic reasoning adopted by the ICJ in the present case.

EXAMINING THE PRESENT SITUATION OF ROHINGYA PEOPLE

ABSTRACT
 The Rohingya people of Myanmar are considered one of the most persecuted people on earth, whose ancestral home is Rakhine State, Myanmar. The Myanmar government has been persecuting them for years. In 1982, the government revoked their citizenship. Following the beginning of the current Rohingya crisis in 2017, Myanmar's security forces have engaged in crimes against humanity and genocide against them, as other people have documented. As a result, Myanmar is facing a genocide case in the International Court of Justice (ICJ), which has been filed by the Gambia. Later, in 2022, the US officially recognized Myanmar’s persecution of Rohingya as genocide. Now, a large number of Rohingya people who fled Myanmar are living in Bangladesh. Some are living in Myanmar. This study, based on secondary data, aims to examine the present situation of Rohingya people living in Bangladesh and Myanmar. The study shows that, till now, Rohingya people are facing different obstacles. Their lives are less protected.
 Keywords: Rohingya, Rohingya crisis, Bangladesh, Myanmar, present situation

Regime of military occupation, human rights, elections and referendums: case of Ukraine

From 2014 until today, parts of the Donetsk, Kherson, Luhansk and Zaporizhia regions of Ukraine are under international legal regime of military occupation. To realize one of its intentions - to change the territorial status quo by force of arms - Russia uses such tools as elections and referendums in the temporarily occupied parts of Ukraine. The article characterizes the legal regime of the military occupation, focuses attention on ensuring the rights and freedoms of citizens and the legal regime on the temporarily occupied territory of Ukraine, emphasizes that the elections and referendums held by Russia have nothing to do with direct forms of democracy. These are legally invalid measures organized by the occupation administrations as an attempt to illegally annex Ukrainian territories by the Russian Federation. Their results do not have any legal consequences and cannot be accepted and recognized by the international community. Also focusing on the regime of military occupation, the authors of the article emphasize that occupation does not mean the loss of sovereignty of the occupied territory. Territorial supremacy of the state is directly related to state sovereignty and is one of its constituent elements. The occupation is characterized by the preservation of power structures and the continuation of resistance and military operations against the occupying state.
 The decisions of the UN International Court of Justice and the International Military Tribunal (Nuremberg) are analyzed. It is emphasized that the methods used by the Russian Federation to achieve the goal of including the territories of Ukraine, in which the Russian Federation held «referendums» and elections, were aggressive, the decisive factor was the military power of the Russian Federation, which came into force and met the resistance of sovereign independent Ukraine and the Ukrainian people. It is emphasized that Russia commits war crimes and uses «means of terrorism», one of which is the financing of so-called elections and referendums in the territories of Ukraine temporarily occupied by Russia. Ukraine carries out armed resistance to the inclusion of the territories of Ukraine in which the Russian Federation held «referendums» («referendums» in the Kherson, Zaporizhzhya, Donetsk and Luhansk regions), reacts negatively to manifestations of territorial sovereignty on the part of the Russian Federation, and Ukraine also demonstrates by its behavior, that the referendums held by the Russian Federation in the Kherson, Zaporizhzhya, Donetsk, and Luhansk regions are unconstitutional, and their results and the acceptance of the territories of Ukraine into the Russian Federation do not have legal force.

Examining Article 36 of the United Nations Charter, the judicial responsibility of the International Court of Justice in settling disputes between countries in international lawsuits

Field and Aims: This article focuses on Article 36 of the UN Charter and examines the jurisdiction and responsibilities of the International Court of Justice (ICJ) in resolving disputes. The aim Is to strengthen the resolution of International disputes and enhance the role of the ICJ in the United Nations. Method: This research uses the normative legal research method to analyze the provisions and cases through qualitative analysis of documentary data and library materials. Finding and Conclusion: findings indicate that the International Court of Justice has jurisdiction over cases referred to it and matters specified in the UN Charter and relevant treaties. The jurisdiction of the ICJ includes treaty interpretation, dealing with issues of international law, determining breaches, and awarding reparations. The court's decisions are binding and require compliance by states. Article 36 leads to declaratory judgments, compensation, and restitution in integrum. However, the jurisdiction of the ICJ is limited and relies on the consent of states for effectiveness.

Роль органов местного самоуправления в становлении и развитии мировой юстиции в России второй половины XIX века

The main aspects of the influence of local governments represented by district zemstvo assemblies on the organization and functioning of world justice in the post-reform Russian province are considered. Attention is focused on the commonality of the principles of building a system of local self-government and world courts, as well as on the problems that the zemstvo faced in the formation of the world judiciary, in particular, restrictions on the property qualification, difficulties in implementing the provisions of the law on unanimous election, a narrow circle of candidates, the impact of social contradictions, financial opportunities. At the same time, it is recognized that the zemstvo institutions as a whole successfully coped with the responsible task entrusted to them and formed a world court worthy of respect and trust.

SIM Peter Baehr lecture 2023: Human rights and the International Court of Justice

The annual SIM Peter Baehr lecture celebrates the founding of the Netherlands Institute of Human Rights (SIM) in 1981 and commemorates the late Peter Baehr, one of SIM's former directors and an eminent human rights scholar. The 2023 lecture was delivered at Utrecht University on 30 November by Hilary Charlesworth, judge at the International Court of Justice and renowned scholar of international law and human rights.

Addressing Japan’s disposal of nuclear-contaminated water from the perspective of international human rights law

The discharge of nuclear-contaminated water containing radionuclides into the ocean by Japan will lead to its integration into the entire ecosystem through processes of circulation and biomagnification, eventually entering the human body via the food chain. This poses a substantial risk of irreversible damage to both the ecosystem and human health, a situation that will worsen with the ongoing discharge of such water. The respect and protection of human rights represent an international consensus, and safeguarding fundamental human rights is a substantial obligation that states must undertake in accordance with both international and domestic law. Since the Fukushima nuclear disaster, Japan has continuously violated its international legal obligations to protect human rights in several areas, including the resettlement of disaster victims, the reduction of nuclear radiation levels, and the handling of contaminated water. Such actions have compromised and will continue to compromise the basic human rights of not only its citizens but also those of people worldwide, including environmental rights, the right to life, development rights, and food rights. In the aftermath of the Fukushima meltdown, the public and workers involved in handling nuclear contaminants have been continually exposed to high radiation levels, endangering their rights to life, development, and health. Japan’s inadequate efforts in victim resettlement and environmental restoration have jeopardized the environmental and food rights of its citizens to live healthily and access food in an environment unaffected by nuclear radiation. The release of nuclear-contaminated water poses a risk of Japan’s nuclear pollution to the people of neighboring countries and the global population at large. The principle of human rights underpins the theory of a community with a shared future for humanity, and human rights are a crucial area of China’s active participation in United Nations affairs and global governance. By voicing concerns over Japan’s potential human rights violations globally, China demonstrates its role as a responsible major country. In response to Japan’s breach of legal obligations and human rights violations, China can adopt a reasoned and beneficial approach, including calling on the international community to hold Japan criminally accountable for crimes against humanity under the Rome Statute and advancing scholarly discussions on ecocide and crimes against the marine environment. Furthermore, China should persist in seeking advisory opinions from the International Court of Justice and strive for substantive accountability, utilizing the mechanisms of international human rights organizations to make its voice heard.

Юридическая хроника

In the March Legal Chronicle, read commentaries on the decisions of the UN International Court of Justice in Ukraine v. Russia, the Supreme Court of the Russian Federation on the correlation between family relations and the resulting rights to social benefits and allowances, as well as the limits of liability of a legal consultant (Ernst & Young (CIS) B.V. case), and the Government Decree creating grounds for unification of rules for the preparation of territory planning documentation.

Examining the Society in Which We Are Educated: Applying Critical Approaches to International Law Research

International law suffers from a lack of diversity. The scholars who are cited by the International Court of Justice (ICJ) write the most widely used textbooks, and those who are recruited by elite organizations are predominantly Western-educated White males. International law discourse sidelines Third World perspectives. In response, Third World approaches to international law (TWAIL) scholarship centers colonialism and the Global North’s entrenchment of economic and political dominance as the raisons d’être for modern rules of international law. Legal research instructors can address the lack of diversity in international law by incorporating TWAIL scholarship and applying critical approaches to international legal research.

The emptiness at the heart of international law

Abstract“What is not prohibited is allowed” is the principle at the heart of international law. Yet the principle is empty. It originates in the Lotus judgment of the Permanent Court of International Justice of 1927 where Turkey was allowed to prosecute a French citizen at the expense of the authority of France to have exclusive jurisdiction. This article recounts the history of “what is not prohibited is allowed” and explains where it has led us astray and where it is in the process of doing so. It recalls that the intention of the creators of the Permanent Court of International Justice was very different, namely that equitable balancing would take place when no specific international law norm could be identified. The article suggests how, through an Advisory Opinion by the International Court of Justice, equitable balancing can be re‐established as the fallback principle when international law is otherwise silent.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) at the International Court of Justice

<i>Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)</i> at the International Court of Justice

Vision and Mission: To Restore and Work on a Narrative About South Africa and the Netherlands for Our (Grand)Children and Future Generations

This article shows a contrast between the morality of South Africa and the Netherlands. The latest example is the courtcase before the International Court of Justice in The Hague. The Netherlands is conspicuously keeping its distance. This may be explained by the neo-colonial attitude of the Netherlands during the period when it colonised, enslaved, looted and pillaged South Africa, imposed indentured labour and established apartheid. This article attempts to initiate a new narrative that transcends this sickening history, a narrative intended for South African and Dutch great-grandchildren. We see this narrative as a start for rewriting history, but also for writing children's books and creating restorative art expressions.

Conflict in Ukraine – Legal Battlefield. Editorial

Article describes unprecedented (in terms of scope, time framework, arguments) legal actions undertaken by Ukraine in response to Russian aggression which began in 2014 and which escalated in 2022. In the framework of lawfare conducted by Ukraine, article focuses on the allegations of genocide which appeared on both sides of conflict. In consequences, it addresses the current proceeding in the International Court of Justice: Ukraine v. Russian Federation, with 32 States intervening, in which Ukraine attempts to prove that Russia started intervention under the pretext of genocide allegedly committed in Eastern Ukraine. At the same time, article presents arguments concerning the possibility of classification of crimes committed by Russia in Ukraine as genocide. At the end the article presents the content of the volume 2 of PRIEL of the year 2023.

The International Court of Justice: A Proper Forum for the Balanced Adjudication of Trade-Environment Disputes

The World Trade Organization’s (WTO) Dispute Settlement Body (DSB) sometimes adjudicates cases with environmental undertones while hearing trade disputes. Considering that the DSB is mainly responsible for the application of WTO international trade rules to these cases, it is arguable whether the DSB is the most appropriate adjudicatory forum on cases with environmental undertones. The article analyses four cases decided by the DSB: (1) The United States – Restrictions on Imports of Tuna (Tuna-Dolphin I), (2) the United States – Restrictions on Imports of Tuna (Tuna-Dolphin II), (3) the European Communities – Measures Affecting the Approval and Marketing of Biotech Products (Biotech Product’s case), and (4) the United States – Import Prohibition of Certain Shrimp and Shrimp Products (the US Shrimp case). It also analyses four cases with trade and environment considerations decided by the International Court of Justice (ICJ): (1) Whaling in the Antarctic (Australia v Japan), (2) Gabčíkovo-Nagymaros (Hungary v Slovakia), (3); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a road in Costa Rica along the San Juan River (Nicaragua v Costa Rica); and (4) Pulp Mills on the River Uruguay (Argentina v Uruguay). From the analysis, this article finds that the ICJ, rather than the DSB, would be the appropriate arbiter of trade cases with environmental undertones. This article finds that, unlike the DSB, the ICJ has a history of balanced adjudication of cases with trade-environment conflict and appears a better fit to decide cases with elements of trade and environment. As such, this option would guarantee a more neutral avenue for the adjudication of trade-environment conflicts.