International Tribunals Research Articles

Практика міжнародних військових трибуналів щодо застосування загальних принципів міжнародного права

Практика міжнародних військових трибуналів щодо застосування загальних принципів міжнародного права

THE ROLE OF ANTÔNIO AUGUSTO CANÇADO TRINDADE AS AN INTERNATIONAL JUDGE - DOI: 10.12818/P.0304-2340.2022v81p381

Antônio Augusto Cançado Trindade lived a life dedicated to the theory and practice of international law. This paper briefly presents an overview of his contributions as a Legal Advisor to the Brazilian Ministry of Foreign Affairs and as an academic on international law, focusing on the contributions of his work as an international Judge at the Inter-American Court of Human Rights and at the International Court of Justice to the advancement of discussions on international law of human rights pertaining to questions of jurisdiction, procedure, substance and to procedural crossfertilisation between international courts and tribunals.

A STUDY OF INSTITUTIONAL DETERMINATION AND CONSOLIDATION IN PUBLIC INTERNATIONAL LAW - THE CHAGOS CASE

Located in the middle of the Indian Ocean, the Chagos Archipelago has been subject to a sovereignty dispute between the United Kingdom and its former colony, Mauritius. Before Mauritius gained independence in 1968, the Chagos Archipelago was separated to establish the British Indian Ocean Territory. The main island in the archipelago, Diego Garcia, was leased to the United States and is home to a military base with 3.000 personnel. Mauritius has been challenging the detachment of the Chagos Archipelago, which it claims to be unlawful, by using international legal mechanisms available before it. After a journey that involved the International Court of Justice (ICJ), the United Nations General Assembly (UNGA), and the International Tribunal for the Law of the Sea (ITLOS), Mauritius has achieved legal victory.
 The ICJ’s Advisory Opinion determined that Mauritius’s right to self-determination within the context of decolonization was violated and the ITLOS Special Chamber consolidated this finding by acknowledging Mauritius as the sovereign of the Chagos Archipelago. While these decisions are admirable for upholding the right to self-determination, they have stretched the jurisdictional limits of each respective institution by ruling on a sovereignty dispute.

Legal Framework for Prosecution of Sexual Violence Cases in Bosnia

International tribunals have been very important in bringing criminals to justice involved in sexual violence. The tribunal has demonstrated that it is possible to effectively prosecute wartime sexual violence and has provided a forum for unfortunate victims to discuss their suffering. The tribunal is anticipated to be capable of prosecuting and exploring a variety of international and domestic sexual abuse. The legal framework and various laws that have been implemented to it have improved the regulatory and legal structure for the prosecution of national war crimes, which has led to a decrease in the various crimes of sexual violence on a worldwide scale. The article that follows is based on qualitative methods of research. An analysis of qualitative research methodology is presented in the following article.

THE PRINCIPLE THAT THE LAND DOMINATES THE SEA IN THE CONTEXT OF SOUTH CHINA SEA DISPUTES: A CRITICAL APPRAISAL

According to the principle that the land dominates the sea, the land is always the basis for any claim of maritime entitlements. Without a land with a coastline or coastal front under its sovereignty, no state can claim any maritime entitlement. The land here includes not only the continental mainland but also islands which may generate the same maritime entitlements. Nonetheless, certain claimants of the South China Sea have rejected or tried to bend the principle in furtherance of their respective claims. The main objective of the present paper, therefore, is to assess the status of the principle as customary international law and its application to the nine-dash-line claim of China and other claims based on maritime features such as atolls, coral reefs, shoals, and the like. The paper reviews the decisions of the international courts and tribunals on one hand and analyses the relevant provisions of the UNCLOS on the other. The paper also applies interpretative tools to reaffirm the meaning of Article 121 of the UNCLOS: the regime of islands. The paper concludes that the claim of historic rights in the nine-dash-line is not squarely in accord with the principle and that most of the claims on the South China Sea that are based on artificially built structures and land reclamation defeat the letter and spirit of the regime of islands, which is a manifestation of the principle that the land dominates the sea.

SCIENCE IS THE WEAPON FOR THE FUTURE OF UKRAINE

Dear Reader! Today marked the 299th day of the war for the independence of Ukraine. Besides the Armed Forces of Ukraine, the frontline of our battle against the aggressor is being held by healthcare professionals whose selfless work saves lives and the health of patients and ensures the existence of Ukraine. From now on, along with experimental and clinical medicine, there is war medicine in Ukraine, and the entire world is fascinated by its results. NATO Parliamentary Assembly has recently recognized our enemy as a terrorist state and called for creating a specialized international tribunal to punish all criminals. However, the full-scale invasion of the enemy with air raid alerts, shelling, scheduled and emergency blackouts did not stop Ukrainians in their love for education, scientific and research work, and awareness-raising activities. The words once uttered by great Ukrainian Hryhoriy Skovoroda, whose 300th anniversary we are celebrating this year, “The one who thinks of science, loves it, and the one who loves it, will never stop learning, no matter how passive he might seem”, are now more levant than ever. After all, they represent Ukrainian healthcare professionals and scientists. Progressive colleagues from across the globe – people of all races, all ages, ethnicities and religious orientations stand in solidarity with them. Together, they use all available possibilities and talents to bring victory closer and strengthen the positive image of Ukraine in the world. At this time the war situation is complex, with a labile standstill at the front in the east of Ukraine. Meanwhile is it an established fact that an independent Ukraine will continue to exist. Nevertheless, the loss of human lives and the destruction of society and infrastructure continues. Ukraine has shown an exceptional brave perseverance and strength. Now it is time to move forward with wise policies. Life must have to return to normal, without serious threats of war attacks. People have to build up Ukraine and healthcare professionals and scientists need to go back to their regular work finding improvements in daily living for the population. Our journal has a dual mission: 1) to enshrine the confident and attractive image of the journal, which is read in 154 countries of the world, in Ukraine and on the scientific map of the world; and 2) to unite progressive medical communities to share experiences and help Ukraine in the time of war. We would like to extend our sincere gratitude to members of the editorial board, who helped in the making of the journal in 2019-2020. Proudly and confidently, we present our readers with a new issue of our journal. This issue saw the light of day thanks to the extraordinary efforts and incredible responsibility of our authors, reviewers, and editors. Review the detailed report on the 6th International Symposium SMARTLION 2022. Medicine and War, which gathered participating lecturers not just from Ukraine, but also the USA, Germany, France and the UK. View video collections in the annex to the publication to review the unique doctor’s experience under conditions of the terroristic russian-Ukrainian war [1]. We would like to express sincere gratitude to every volunteer for help, solidarity and partnership with Ukrainian doctors and scientists [2,3], as well as physicians who are on the medical frontline in this terroristic war [4]. The cover page of this Issue “The light will overcome the darkness” (author: Ivan Dzis, MD, PhD) reflects our hope for Victory for Ukraine in 2023. We hope that the activities of our journal will serve as additional weapons for the future of Ukraine, and the editorial team will manage to continue developing the journal next year. We wish everyone health and victory in 2023! Glory to Ukraine! Glory to the Heroes!

Problematising diversity: The change that international lawyers (do not) want for international courts

Abstract Scholars working on international courts and tribunals (ICTs) have recently seized the agenda of the diversity of the international judiciary and international institutions more broadly. Focusing, above all, on the lack of women in the different international benches around the world, they have criticised and proposed reforms to the composition of ICTs. This paper argues that the burgeoning literature on the diversity in ICTs expresses a particular politics of inclusion for the composition of the international judiciary. We begin by explaining the importance of looking into knowledge production in international legal scholarship as a site of (re)production of the field’s boundaries and situating the literature under study within the broader universe of the scholarship on ICTs. We then lay out this paper’s main contribution: a reconstruction and critical analysis of the normative commitments of the politics of inclusion underlying the literature on diversity in ICTs.

The Obligation of EIA in the International Jurisprudence and Its Impact on the BBNJ Negotiations

Environmental impact assessment (EIA) has been widely recognized as a crucial instrument for sound decision-making that will promote environmental conservation and sustainable development. International jurisprudence has clarified the obligation of EIA under customary international law, especially concerning its legal status, threshold standards, and procedural requirements, as well as the issue of State responsibility. As suggested by this article, international tribunals tend to adopt a procedural-oriented and State-based approach regarding the obligation of EIA, leaving more discretion to the States pursuing the proposed activities. This approach is insufficient to realize the role of EIA in fostering sound decision-making. As for the BBNJ negotiations, in light of the legal status of the Area in international law and the established rules governing the issues of EIA, especially the three Regulations and Recommendations adopted by ISA, the future implementation agreement should reinforce international regulations regarding the substance and implementation of EIA obligations.

Tackling Lacunae in International Courts and Tribunals’ Procedure: The Role of External Precedent

Abstract International courts and tribunals are frequently faced with the need to fill lacunae in their own rules of procedure. Among the many tools at the disposal of adjudicative bodies, external precedent emerges as one of the most flexible and intuitive, allowing to “borrow” from the procedure of other bodies. This paper offers an overview of how international courts and tribunals use external precedent on procedural matters in the context of a number of typical gap-filling techniques. To this end, it delves into the possibility of employing external precedent as a subsidiary means for the determination of rules of law, as an instrument for carrying out systemic interpretation, and as a way of invoking and delimiting inherent powers. Through this analysis, the paper questions the view according to which recourse to external precedent necessarily contributes to the legitimacy of international courts and tribunals. It shows that, at least in procedural matters, this nexus is not straightforward and varies according to the context in which reference to external precedent is made.

Intervention in Inter-State Arbitration, including the Case of UNCLOS Annex VII Arbitration

This article addresses the issue of intervention in inter-State arbitration, including arbitration under United Nations Convention on the Law of the Sea (UNCLOS) Annex vii and tackles the question whether intervention in arbitral proceedings is only possible where the parties in dispute have expressly consented to it. It is maintained in this paper that international arbitration is not static and has undergone long evolution which has implications for the notions of party autonomy and confidentiality of proceedings. Nowadays inter-State arbitration is increasingly influenced by the practice of the ICJ and other international courts and tribunals engaged in State-to-State dispute resolution especially in the field of international procedural law. The article demonstrates that intervention in inter-State arbitrations is not as unthinkable as it was some decades ago. It does so by reference to the history of intervention in international arbitration and the practice of States in the field of intervention in international judicial and arbitral proceedings. While examining the function and purposes of the procedure of intervention in inter-State litigation and the forms of intervention known to it, the article assesses what the nature of the competence to permit intervention is. In this regard, it also examines the operation of the principle of consensual jurisdiction with a view to establishing whether intervention is subject to the consent of the parties in dispute. Finally, by way of comparison with other known forms of participation of non-litigants in the proceedings, it stresses the special function of the intervention procedure so as to justify the permissibility of intervention in inter-State arbitration.

THE IDENTITY OF THE PROJECT OF THE FUTURE IN POST-WAR UKRAINE

The Ukrainian nation in the conditions of war is united around a common patriotic platform in achieving victory over the infernal racist enemy and forming a project for the future. In his annual message on the internal and external situation, President Volodymyr Zelenskyi clearly articulated that the future will be Ukrainian.
 The subjectivity of Ukraine, which was won through bloody battles, leaves no doubt that the values of civilization are defeating totalitarianism. The Russian- Ukrainian war accelerated Ukraine's acquisition of the identity of the future project associated with the European integration vector of development. The article examines the procedurality of the integration choice, the origins associated with Euromaidan and the transformation of the resistance identity.
 The article analyzes the destabilization of the domestic political situation in the post-Maidan period, provoked by pro-Russian forces, in particular, due to the politicization of regional controversies in the humanitarian sphere: regarding language, culture, Ukrainian and Russian narratives of historical memory. Despite the hybridity of the confrontation with Russia, the state information policy was not focused on the systematic development of the national security strategy. Ukraine's information policy acquired an active-offensive character already in the conditions of a full-scale military invasion by the aggressor state of Russia.
 Ukrainian and Russian war narratives radically differ in the interpretation of manifestations of genocide, war crimes, and crimes against humanity. Falsification and concealment of crimes by the Russians do not stop Ukraine and the civilized world (relevant institutions) from documenting them for future international tribunals. The data of sociological polls regarding the attitude of Ukrainian citizens towards everything Russian, together with the soviet-communist, as towards something unequivocally hostile, are given.
 Urbicide committed by racist criminals in Ukrainian cities is considered as a separate topic of the article. Russia destroyed its future with military plans for the physical and spatial destruction of Ukraine and Ukrainians. The Ukrainian identity of the future project based on democratic values and shared experience is the identity of a nation of heroes, fighters, and global leaders.

The Interplay between Ukraine’s Domestic Legislation on Conflict and Uncontrolled Territories and its Strategic Use of ‘Lawfare’ before Russia’s 2022 Invasion of Ukraine – A Troubled Nexus?

Abstract Russia’s full-scale invasion of Ukraine on 24 February 2022 can be seen as a culmination of eight years of its aggression against Ukraine, including its annexation of Crimea in March 2014 and the control of the two ‘People’s Republics’ in Donbas. Before the invasion, the Ukrainian authorities had actively expressed their politico-legal stance on the conflict, using lawfare against the Russian Federation, e.g. at the European Court of Human Rights (ECtHR), the International Court of Justice (icj), and the International Tribunal of the Law of the Sea (itlos). In this context, the paper explores the interplay between Ukraine’s domestic legislation regarding the annexation of Crimea and Russia’s control of the People’s Republics in Donbas prior to the invasion, and Ukraine’s use of lawfare against Russia with a focus on policy and legal coherence. It is demonstrated that, while Ukraine’s lawfare strategy regarding Crimea had been in line with domestic legislation, Russia’s use of proxies in eastern Ukraine and the challenges of the Minsk peace process led to incoherence between Ukraine’s domestic laws and its use of lawfare. Though Russia’s 2022 invasion of Ukraine is a game-changer, both for Ukraine’s domestic legislation and its use of lawfare, the analysis contributes to an understanding of the nexus between domestic and international law in Ukraine prior to the invasion and explores the implications such a nexus will have for Ukraine’s future lawfare against Russia, including the most recent icj case relating to the interpretation, application, and fulfillment of the 1948 Genocide Convention.

Global Climate Change Action as a Jus Cogens Norm: Some Legal Reflections on the Emerging Evidence

This article analyzes the possibility of environmental obligations acquiring the status of jus cogens (peremptory) norms from six perspectives, namely, domestic legislation of States, national judicial decisions, academia and international organizations, United Nations documents and initiatives, treaties and international State practice, and international tribunals. Additionally, it is argued that the economic and political interests surrounding the military and fossil fuel industries and the vast resources dedicated to them hinder the world’s climate change efforts. Thus, the article presents two research questions. First, what are the possibilities of environmental obligations becoming peremptory norms of international law? Second, if these obligations currently do not meet the requirements to be recognized as jus cogens, what would be required for them to obtain this status?

Assessment and Quantification of Damages in Private and Public International Law: an Overview

This piece is a modest tribute to Professor Gilas who has long been the author’s tutor during the author’s academic career. Its purpose is to concisely describe how international law on damages has evolved, taking into particular account the jurisprudence of international courts and tribunals as well as domestic courts. The topic of damages is important in practice, but seems to be neglected in the doctrine. The author thus wishes to make an overview on the assessment and quantification of damages. To this end, the article starts with a presentation of basic principles to discuss further the burden and standard of proof, entitlement to damages, assessment of amount of damages, quantification of damages, reduction of damages, including causation, prohibition of speculative damages, contributory fault, foreseeability, mitigation and the prohibition of double recovery. Article concludes with final observations.

The Authority of icj Advisory Opinions as Precedents: The Mauritius/Maldives Case

Abstract The role played by precedents in international law is usually addressed with regard to their bearing on other judicial decisions and their contribution to the development of international law. Recently, the International Tribunal for the Law of the Sea (“itlos”) has offered a novel interpretation of the legal effects of the International Court of Justice’s (“icj”) advisory opinions as precedents. In Mauritius/Maldives, the itlos rejected two of the Maldives’ preliminary objections – based on the existence of a dispute between Mauritius and the United Kingdom over the sovereignty of the Chagos Islands – , arguing that the 2019 icj advisory opinion on the separation of the Chagos Archipelago from Mauritius had resolved the dispute in favour of the latter. In light of the itlos’s decision, the present contribution is aimed to provide some reflections on the authority of icj advisory opinions as precedents and on their legal effects in international law.

Equitable Principles in the Delimitation of the Aegean Continental Shelf

The purpose of the article is to present the role of equitable principles in the delimitation of the continental shelf in the specific situation of the Aegean area. First, the theoretical aspects of the equity in international law and its typology are presented, followed by explaining the role of equitable principles in maritime relations. In turn, the author explains the interdependence of equity and geographical conditions, while stressing the unique geography of the Aegean, bearing heavily on delimitation efforts in the region. The context of the Greek-Turkish continental shelf delimitation dispute is explained, drawing attention to the divergent positions of the two countries. The rules applicable to the dispute at hand are then analysed, with a focus on customary law, in the absence of treaty rules applicable between Greece and Turkey as concerns the maritime delimitation. The role of the international courts and tribunals in finding solutions in the disputes involving the delimitation of the continental shelf is discussed, by also presenting their approach to interpreting and applying equity and equitable principles. The three-stage delimitation method elaborated in the case-law based on equitable principles is finally presented, while drawing attention to the difficulties in applying the method in practice and the resulting therefrom inconsistencies.Finally, the conclusions of the above considerations for the Aegean continental shelf delimitation are drawn and the perspectives for finding a solution in the future are presented.

Korea

Abstract The Japanese government on 13 April 2021 announced its 30-year plan to release radioactive contaminated wastewater from the Fukushima nuclear power plant into the Pacific Ocean from the spring of 2023. Korea’s former President Moon Jae In, ordered Korea’s ministries to explore how to resolve the matter through the International Tribunal for the Law of the Sea (itlos) through filing a lawsuit and potentially requesting provisional measures. There are several dispute resolution methods under international law. President Moon’s order to file a suit and potentially request provisional measure is one approach to resolving disputes. However, President Moon acted prematurely because even though the Japanese government had announced its plans to release radioactive contaminated wastewater from spring of 2023, the timing of this discharge was unclear. Since the release would have taken more than two years from Moon’s order, it would have been sufficient to respond by expressing “deep regret” and seek other ways to proceed under international law.

The historic verdict of ITLOS on maritime border delimitation in the region of the Bay of Bengal: A historical analysis

In 1982, the United Nations Convention on the Law of the Sea (UNCLOS) established the International Tribunal for the Law of the Sea (ITLOS) as an independent tribunal to sit in judgment on resolving maritime clash between the states. The ITLOS published on 14 March 2012 its case judgment on the Dispute Maritime Border between Bangladesh and Myanmar in the sea area of the Bay of Bengal. That tribunal was asked to demarcate three maritime borders; the Territorial Sea Border, Exclusive Economic Zone (EEZ), and Continental Shelf beyond EEZ were the principles of delimitation. The article focuses on analyzing and investigating the main features of the remarkable verdict from the historical perspectives. This paper also attempts to study its significant implication in sharing sea resources from both countries. Regional relations and border security tension can be more exposed in the regional geopolitics due to the judgment. Therefore, Bangladesh will adopt effective roles in the chessboard of south Asian regional politics following significant historical lessons of past and present. IIUC Studies Vol.18, December 2021: 173-192

James Crawford and the Australian Government

Abstract This article by two international lawyers advising the Australian Government focuses on the cases before international courts and tribunals in which Professor Crawford appeared as counsel on behalf of the Australian Government including the Southern Bluefin Tuna Cases, the East Timor Case, the Whaling in the Antarctic Case and the Certain Documents and Data Case. The article also covers advice Professor Crawford provided to the Australian Government both in the course of those cases and on other matters such as compulsory pilotage in the Torres Strait. To paint the full picture, mention also is made of a limited number of matters earlier in his career in which he acted against Australia. The article illuminates Professor Crawford’s role as adviser, counsel and advocate for Australia across the full breadth of international law, from law of the sea and international environmental law, to the law on diplomatic protection and the law of treaties.

Cases before International Courts and Tribunals concerning Questions of Public International Law Involving Australia 2021

Cases before International Courts and Tribunals concerning Questions of Public International Law Involving Australia 2021