International Judicial Process Research Articles

Transparency in ISDS: A Study Based on Multi-party Agreements

The virtues of transparency and confidentiality in international judicial processes are often debated, including in relation to investor-State dispute settlement (ISDS). The extent of transparency in an ISDS proceeding may vary based on the applicable arbitration rules and the text of the international investment treaties under which the dispute arises. In this context, this article studies the practice of States reflected in select multiparty agreements. The sample of agreements considered, by virtue of the large number of participating countries, significance of trade and investment flows between participants, or both, may be considered representative of global trends or the lack thereof. The article also discusses how the transparency and confidentiality provisions in such agreements interact with the applicable arbitration rules and the net effect on transparency in ISDS. ISDS, transparency, UNCITRAL Arbitration Rules, public access to documents, open hearings, third parties, publication of orders, confidentiality.

Experience of the international courts in the area of gathering evidence

The international judicial process, which emerged only about a century ago, could not be constructed by a model different from the judicial processes within the states. However, the legal framework for such process is created upon the generally accepted principles and norms of international law by the sovereign states and expresses their common will. With proliferation of the international courts in the end of the XX century emerged the pressing issue of uniformity of the judicial process, particularly the norms that regulate selection and assessment of evidence that affect court rulings. The article also explores the questions associated with witness testimony. Attention is given to the aspects of distribution of burden of proof, as well as methods, forms, and standards of proving that exist within the international judicial process. Research is conducted on the documents regulating the work of the branches of international justice and the established case law. A claim is made that international courts function within the certain framework that is defined in their constitutive acts. The analysis carried out in the article reveals insufficient development of corresponding regulation. The author concludes that a judicial body in these conditions has freedom of action that is currently clearly evident in the work of the International Court of Justice and the International Tribunal for the Law of the Sea.

The doctrine of action popularis in international litigation: genesis and value dimension

The article is devoted to the analysis of the genesis and value dimension of the doctrine of action popularis and its application in the field of international criminal justice. The main ideas that formed the basis of the doctrine of action popularis are studied. The judicial practice of application of the modern doctrine of action popularis is analyzed. In the process of constitutional and legal reform in the field of justice in 2016, the Basic Law of the state was supplemented with new provisions, in particular, that in order to protect the rights, freedoms and interests of individuals in public relations there are administrative courts (part five of Art. Article 125 of the Constitution of Ukraine), and on the introduction of the legal institution of a constitutional complaint (part four of Article 55, Article 151-1 of the Constitution of Ukraine). Therefore, the issues of research of the judicial doctrine of action popularis, which determines the judicial protection of the rights and interests of an indefinite number of persons, acquire special importance. On the basis of which the principles of this doctrine since the days of Ancient Rome, the protection of the rights and interests of a particular person was carried out, in particular, taking into account national, national interests, and according to which doctrine every member of society had the legal right to protect public interests. , which are of paramount importance for society, the people, the state as a whole (translated from the Latin publicum - society, people, state), the right to combat crime. One of the trends in the development of modern international law is the formation of legal and institutional foundations for the protection of values, which are most important for the entire international community, and which form the basis of the modern international legal order. The need to ensure a fair balance, which must be established between the general interests of society as a whole and the requirements for the protection of individual fundamental rights, is reflected in the practice of international courts. Key words: Doctrine of action popularis, international court, international crimes, international judicial process.

The concept of evidence in the international judicial process

This article discusses evidence in the judicial process as the information serving as grounds for court’s decision. In the international judicial process, which mostly of challenge character, significant role belongs to the sides, and the sides present the courts with information that substantiates each of their positions. The court, being an independent body, evaluates and selects information that it considers necessary to hear the case. It is advanced that the theory of international justice still lacks established and generally accepted procedure for selection of information. Such rules are formed in the judicial process and admissibility of these rules by the states or other subjects of international law. This work highlights the importance of determining comparable approaches towards the process of evidence in various international judicial bodies. Special attention is given to the issues of distribution of the burden of proof, methods, forms and standards of evidence applicable in the international judicial process.

Trends of Development of the Modern International Justice

The article is devoted to tendencies of development of modern international law and the international justice authorities. Globalization of the modern world and the interaction of States at all levels: political, economic, commercial, educational, and others - determines the relevance of the article. The interaction leads to conflicts and disputes between States, between States, legal and physical persons, between legal and physical persons from different countries, they require resolution at the international level. The increase of number of international contacts is followed by the increase of conflicts between the parties and, respectively, the number of international judicial processes. International law and the international judicial bodies play a special role in solving the problems of the peaceful settlement of international conflicts. Certain trends characterize the current stage of development of international law. These are diversification and fragmentation resulting in the proliferation of international judicial bodies. Strengthening the rule of law in international relations is the main positive point of the main trends in international law. The sphere of international relations, which are not covered by international law, are reduced. The main negative aspect of modern tendencies in the field of international justice is: the possibility of multiple interpretations of international law, especially the regional courts, as well as increasing the risk of issuing conflicting, sometimes inconsistent, decisions of different international judicial bodies. The possibility of finding a forum shopping is a negative consequence as well. This creates a legal conflict, delays, problems with recognition of international judicial bodies, their jurisdiction, for failure to execute court decisions. This leads to a reduction of efficiency of activity of international courts in General. The main task of modern international law is to overcome or mitigate conflicts of jurisdictions of the various international judicial bodies, as well as to set the stable matches between international courts and the enforceability of their decisions. Studies of the leading Russian and foreign lawyers play an important role for overcoming contradictions in the sphere of international law and the activities of international judicial bodies. Scientists note in their works that the modern trends of development (diversification, fragmentation, proliferation, imperativity) is an objective phenomena, they are caused by the development of pluralism of the modern world.

Palestine, self-determination and international justice: looking back to the ICJ and looking forward to the ICC

ABSTRACTThe Israel-Palestine dispute is an intractable problem for international law. Palestine demands self-determination, independent statehood and the end of Israeli occupation. Israel demands an end to cross-border attacks, rights to annexed land containing Israeli settlements and sovereignty over Jerusalem. This is a wicked problem of particular relevance to the ongoing dissolution of the State on the world stage. Is Israel's vision of a state as a birth right compatible with Palestine's claim to statehood as an expression of self-determination? In this article, we engage with the temporality of this conflict via two international judicial processes – the 2003 International Court of Justice Advisory Opinion in the Israeli Wall case and the potentially disruptive future intervention of the International Criminal Court in relation to alleged international crimes committed in the West Bank and Gaza since 2014. We argue that prospective efforts to achieve international justice in this case must privilege human rights concerns and prioritise the right of the Palestinian people to self-determination. This analysis of law's intervention in a persistently ungovernable space aims to contribute to a reinvigoration of human rights discourse in the context of international criminal law.

Out of the Shadows: An Appreciation of Sir Elihu Lauterpacht’s Contribution to the Doctrine of International Law

Abstract Sir Elihu Lauterpacht’s contribution to the doctrine of international law was wide—ranging and incisive, but has been overshadowed by his achievements as a consummate practitioner. This essay attempts to redress the balance by focusing on two areas of his published work—the law of international organisations, and international arbitral and judicial proceedings—which contain ideas and analytical approaches worthy of (re)consideration. These two themes are closely inter–linked in his work through a focus on the significance of the international judicial process in the development of the law of international organisations, and by the recognition that international tribunals are themselves international organisations.

The substance of an international judicial process

The substance of an international judicial process

Bosnia-Hercegovina and International Justice

Three different international courts have determined that genocide took place in Bosnia-Hercegovina in 1992-1995: the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Court of Justice (ICJ), and the European Court of Human Rights (ECHR). Yet paradoxically, there has been virtually no punishment of this genocide, while the punishment of lesser war crimes of the Bosnian war has been very limited. The ICTY has convicted only one individual, a lowly deputy corps commander, of a genocide-related offence. The ICJ acquitted Serbia, the state that planned and launched the assault upon Bosnia-Hercegovina in 1992, of genocide and related offences, finding it guilty only of failure to prevent and punish genocide. Although Serb forces were responsible for the overwhelming majority of war crimes, the ICTY prosecution has disproportionately targeted non-Serbs in its indictments and, among Serbs, has disproportionately targeted Bosnian Serbs, with no official of Serbia or Yugoslavia yet convicted of war crimes in Bosnia. This article argues that the meagre results of the international judicial processes vis-à-vis the crimes of the Bosnian war must be sought in the structural failings, poor decision making, and political influences that affected the international courts. It argues that the international courts have failed either to deliver justice to the victims of the war crimes or to promote reconciliation among the peoples of the former Yugoslavia and suggests measures that could be taken to rectify the situation.

Norms for the Protection of the “Common Interests of International Community” in International Judicial Process

Norms for the Protection of the “Common Interests of International Community” in International Judicial Process

The International Court of Justice and Nongovernmental Organizations

AbstractThe role that the non-governmental organizations can play with respect to the proceedings in front of the International Court of Justice has been always a thorny issue. The, relevantly recent, Practice Direction XII has not substantially ameliorated this situation. Although providing an avenue for the views of civil society to be represented, it can also be argued that from an interpretative point of view it is more restrictive than the Statute of the Court itself, a fact which reinforces the debate on the advantages and pitfalls of an amendment of the Statute of the Court. However, other problems remain; the definition of international organization, whether it includes NGOs as well or not, seems to differ not only from tribunal to tribunal e.g. PCIJ and ICJ but also from case to case. Other possibilities of submitting information to the Court, as for instance as experts, have been rarely put to use. The possible benefits of a greater participation of NGOs in the international judicial process have, nevertheless, up till now not changed the most likely of NGO submissions; they either end up being placed to the Peace Palace Library for consultation purposes or they are more seriously considered but only through the intermediary of a State involved in the proceedings.

Judge Vereshchetin: A Russian Scholar at the International Court of Justice

There are three topics within the body of Vereshchetin's academic work which deserve special attention: the law of the sea, space law, and the theory of international law. Vereshchetin's contribution as a judge to the practice and theory of international law can be appreciated through his individual opinions and declarations, in which he dealt with various issues of international law and the international judicial process: self-determination, countermeasures, diplomatic protection, and questions which concern the functioning of the Court (the role and powers of the ICJ, non liquet, bases for the revision of decisions, declarations accepting the Court's jurisdiction and reservations to them, and so on).

Forum Prorogatum Returns to the International Court of Justice

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court

Foreword. I: Contemporary Conceptions of the Role of International Judicial Settlement. II: The Contemporary International Judicial Process. Law and Logic, and the `Law'/`Politics' dichotomy. III: The Jurisdiction of the Full Court of the International Court, and the Special Chambers Gloss to Jurisdiction. IV: The Contemporary International Court as Independent, and as Representative Tribunal. V: A Contemporary, Operational Approach to Court Jurisdiction and Justiciability. Conclusion: New Agenda, and New Client-States for the International Court. Appendices: A. Covenant of the League of Nations (1920), (Art. 12-15, Art. 19). B. Charter of the United Nations (1945), (Chapter XIV. Art. 92-96). C. Statute of the International Court of Justice. D. U.N. General Assembly Resolution 44/23, 9 January 1990. (`United Nations Decade of International Law'). Table of Principal Cases. Index.

Interim Measures of Protection in the International Court of Justice

Two recent cases in the International Court of Justice have given new prominence to the role of interim measures of protection in international controversies. The circumstances of both the Icelandic fisheries litigation and the Australian and New Zealand application to prevent the holding of French nuclear tests in the Pacific Ocean were such as to promise an enhanced role for interim measures in interstate conflicts. First, the jealousy with which states guard their natural resources and the continuing competition for those resources, especially in the high seas, have occasioned disputes in which a potential conflict management role for interim measures has been foreshadowed. The classic award of interim measures of protection, the Anglo-Iranian Oil Company Case (Interim Measures o f Protection) (United Kingdom v. Iran) 1 was made in this context, as was the order in Fisheries Jurisdiction (United Kingdom v.Iceland), Interim Protection.2 Secondly, in both cases, the indication of interim measures was disregarded. The effective role of interim measures is thus related to the general problem of improving the acceptability of the Court to states. Interim measures of protection, as an adjunct of the ,judicial process, reflect the perennial judicial concern for effective decisionmaking.The present debate on the role of the International Court of Justice has, to a large extent, concentrated on the lack of confidence shown by states in the Court. The length of time which elapses before final judgment has constituted a serious objection to the proceedings of the Court. Interim measures may have a role to play in ameliorating this situation3 for the duration of proceedings is of less concern when the rights of the parties receive interim protection. Thirdly, interim measures, may prove a unique means of preventing abuses of the human environment at the international level. The current emphasis on problems of the environment, especially pollution in international areas such as the high seas and pollution transcending state borders, has given rise to a growing demand that environmental abuses be nipped in the bud. States are unlikely to be satisfied with final judgments after irreparable damage to the environment has been caused. Increasing awareness of the global dimensions of these problems, the greater consciousness of the interdependence of states and of the inevitable impact of natural activities upon the environments of other states, should lead to a strengthening of the preventive role of the international judicial process. In this area, the institution of interim measures of protection, such as the injunction, has a potential role of great significance.

Policy Considerations and the International Judicial Process

Policy Considerations and the International Judicial Process