International Tribunals Research Articles

The impact of the monetary gold principle on the determination of jurisdiction in the mixed maritime disputes.

Mixed maritime disputes are maritime disputes that involve the concurrent consideration of any dispute concerning sovereignty or other rights over continental or insular land territory, which according to Article 298(1)(a)(i) of United Nations Convention on the Law of the Sea, should be excluded from the jurisdiction of a court or tribunal referred to in Article 287. However, by means of treaty interpretation or consensus of two parties, International Tribunal for the Law of the Sea and other Annex VII tribunals have increasingly broken through the limits to actively exercise jurisdiction. Judgements under the influence of this tendency will be firmly resisted by states whose sovereign interests are damaged. Moreover, these judgements will not only fail to resolve disputes, but will create more serious international law and international political disputes, such as the judgement on preliminary objections of Mauritius v. Maldives delimitation case. In this judgement, the Special Chamber of International Tribunal for the Law of the Sea circumvented the Monetary Gold principle by citing the International Court of Justice advisory opinion and United Nations General Assembly resolution, which had no legally binding force. It is proposed that this judgement could open Pandora's box of challenges to general principles of international law and jurisdiction over sovereignty disputes. For States with mixed maritime disputes to resolve the issues mentioned above, it is necessary to respond to lawsuits actively, avoid adverse consequences caused by default judgements and reach regional consensus, and avoid unfavourable International Court of Justice advisory opinions and United Nations General Assembly resolutions.

국제재판소가 수행한 200해리 이원(以遠) 대륙붕의 경계획정에 대한 비판적 소고(小考) — 관련 국제재판소 판례 분석을 중심으로 —

국제재판소가 수행한 200해리 이원(以遠) 대륙붕의 경계획정에 대한 비판적 소고(小考) — 관련 국제재판소 판례 분석을 중심으로 —

Natalia Torres Zúñiga, The Inter American Court of Human Rights. The Legitimacy of International Courts and Tribunals

Este articulo reseña: Natalia Torres Zúñiga, The Inter American Court of Human Rights. The Legitimacy of International Courts and Tribunals. (2022) Routledge, London-New York, 213 pp.

Tribunal for the Russian Aggression in Ukraine: The Need for Accountability

The Russian aggression against Ukraine has raised the need for accountability and international rule of law. Russia through committing the supreme international crime has deliberately violated basic international principles and norms such as state sovereignty and territorial integrity of Ukraine and the prohibition of the use of force. Member states of the United Nations drafted and agreed to create the International Criminal Court to punish the most serious crimes. The Kampala amendments of the Rome Statute on aggression, adopted a decade later, can be activated if the two states concerned have accepted ICC jurisdiction. Russia and Ukraine are not members of ICC, although the unilateral declarations of Ukraine accepting ICC jurisdiction can be exercised for war crimes, crimes against humanity and genocide committed in the territory of Ukraine. The lack of an international mechanism to punish the crime of aggression against Ukraine have triggered calls and actions to create a special tribunal with a limited focus on that crime, based on the development of international criminal law over the past eighty years. The EU recently agreed to establish an International Center for the prosecution of the crime of aggression – to preserve evidence and prepare the analysis of the evidence for the prosecution for future national or international trials – which is considered a first step in that direction. This research will analyze options to create either a special international tribunal or a hybrid tribunal to investigate whether Russia’s acts of violence in Ukraine constitute a crime of aggression and their prosecution. It will examine the legal basis of its establishment and functioning of the tribunal based on previous precedents, such as the International Military Tribunal (Nuremberg), or other specialized courts integrated in a national justice system with international judges – hybrid court. It will also explore the indispensable role of the United Nations in establishing such a tribunal and its implications in ending the conflict.
 
 Received: 13 January 2023 / Accepted: 17 March 2023 / Published: 20 March 2023

The Imperative of Prosecuting Crimes of Aggression Committed against Ukraine

Abstract As a result of Russia’s invasion of Ukraine in February 2022, we are sitting at a crossroads where one path further weakens the prohibition of the use of force and another helps restore its integrity. In this context, this article argues it is imperative that we take all available steps to reinforce the prohibition, and that holding President Putin to account for the crime of aggression holds the key in this regard. The article explains why it is necessary to establish an ad hoc international tribunal to prosecute crimes of aggression committed against Ukraine given the International Criminal Court lacks jurisdiction over any crime of aggression involving a State not party to the Rome Statute, the impossibility of amending the Statute in this instance, and the impediments that will stand in the way of a successful domestic prosecution of the crime of aggression, including immunities enjoyed by those most responsible. Finally, the article addresses the principal objections to the proposed tribunal including its cost (which is overstated and pales in comparison to the mounting cost of the ongoing conflict); its supposed redundancy given efforts to prosecute other serious international crimes committed in Ukraine (which undersells the challenge of holding leaders to account and discounts the value of separately prosecuting aggression); and the concern that the tribunal would represent selective justice (which overlooks the fact that a prosecution of the leaders of one of the world’s most powerful States would help end, rather than exacerbate, international criminal justice’s selectivity problem).

Enforcing international arbitral subpoenas in the United States

Abstract The jurisprudence of the United States Supreme Court coupled with restrictive domestic arbitration legislation has created gaps in the enforcement of international arbitral subpoenas in the United States. These enforcement gaps restrict access to evidence by international arbitral tribunals seated in the United States and block such access entirely for foreign-seated international arbitral tribunals. These gaps also make the United States an outlier among other major international arbitration jurisdictions and conflicts with international arbitral practice. However, the recent decision of the United States Court of Appeals for the Ninth Circuit in Day v Orrick, Herrington & Sutcliffe is a first step toward filling these enforcement gaps. This article sets out the legislative framework governing the enforcement of international arbitral subpoenas in the United States, introduces the existing gaps in such enforcement, demonstrates how these gaps fly in the face of international arbitral practice and explains how the Ninth Circuit has now filled at least some of them. If followed by other federal courts, Day v Orrick may pave the way for the enforcement of subpoenas issued by international arbitral tribunals seated both within and outside the United States, and bring the United States back in line with international arbitral practice.

The Human Right of Freedom of Expression in Investor-State Arbitration

Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing. ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference

THE FUNCTION OF THE INTERNATIONAL CRIMINAL COURT IN DEFENDING HUMAN RIGHTS AGAINST CRIMES

Humankind had to wait for the shock of the dramatic events and gross violations of human rights in the former Yugoslavia and Rwanda for the international community to accept the idea of establishing a permanent international criminal court, which was established after the obstacles and criticisms leveled at the international military tribunals of Nuremberg 1945 AD and Tokyo 1946 AD, and the Special International Criminal Courts for the former Yugoslavia 1993 AD and Rwanda in 1994; Which centered its foundation around its submission to the logic of control, power and inequality. On this basis, the international community intensified efforts to reach the endorsement of the Statute of the International Criminal Court, In addition to punishing the perpetrators of human rights violations and preventing crimes in the future, the court sets principles with regard to reparation for the damages suffered by the victims or in relation to them, including restitution, compensation and rehabilitation, by establishing a trust fund for the benefit of the victims in the crimes that fall within the jurisdiction of the court and for the benefit of the families the victims. The study adopted the historical approach, the comparative analytical approach, and the descriptive approach in order to stand on the historical development of the efforts of the International Criminal Court in protecting and promoting human rights, as well as tracking the efforts and studies that accelerated the achievement of this goal, as well as analyzing and scrutinizing opinions and positions in the light of the rules of international law and decisions of international legitimacy

Prospects for invoking the law of self‐determination in international climate litigation

AbstractThe question of the substantive law that international courts and tribunals can apply in adjudicating climate change cases has been widely debated. This article focuses on the potential of self‐determination, a cornerstone of international law, to shed light on the duties held by States in the face of climate change. The applicability of the law of self‐determination is broad, not limited to the classic decolonization setting. Focusing on the situation of low‐lying island States that face the prospect of large‐scale loss of their entire territory, or its effective use, the article constructs an argument by analogy regarding the content of the right to self‐determination. Low‐lying States have the right to free determination of political status in the face of inundation, although this is limited by the territorial integrity of other States. Correlative obligations may be attributed to all States erga omnes, to current administering powers and potentially to high‐emitting States.

Ecocide Before the International Criminal Court: Simplicity is Better Than an Elaborate Embellishment

In 2021, with their proposals of a new definition of ‘ecocide’, the Independent Expert Panel for the Legal Definition of Ecocide (‘IEPLDE’) and the Promise Institute for Human Rights (‘UCLA’) Group of Experts reignited the discussion on expanding the International Criminal Court’s (‘ICC’ or ‘Court’) jurisdiction over the gravest instances of environmental degradation. The proposed definitions form part of the broader campaign towards the international criminalisation of ‘ecocide’ and its prosecution before the ICC. This discussion challenges such ambitions, arguing that, in its current form, the Court would be unable to produce environmentally-satisfactory results. It underscores that the human-centric fundaments of modern international criminal law (‘ICL’) prevent the ICC from fusing different approaches and values governing international environmental law (‘IEL’) into its institutional design. A middle-ground is proposed instead: rather than surrendering the pursuit of environmental justice before the ICC or risking a ‘symbolic’ revolutionisation, the focus should be re-oriented on maximising the ‘environmental’ potential of the current statutory framework. This approach aligns with the strive towards greater ‘internationalisation’ of international courts and tribunals, encouraging more eager analysis of their statutory provisions from multiple perspectives and in the context of a variety of cross-sectoral international law norms, objectives, principles, and approaches. Two possible directions for progression in that regard are proposed: (i) more resourceful translation of environmental realities into the substantive prohibitions of war crimes and (ii) more active reliance on and application of a ‘greened’ scope of Articles 21(3) and 7(1) of the Statute.

The role of civil society institutions in combating the consequences of russian aggression against Ukraine

The article discusses the role of civil society institutions in the process of overcoming the consequences of russian aggression against Ukraine. It is highlined that one of these consequences is the need to document numerous war crimes in order to further use such materials in international courts and tribunals. It is emphasized that in the context of martial law, the law enforcement system faces a number of objective factors that impede the adequate performance of their functions, including such as 1) the need to document and investigate mass acts of commission of war crimes while continuing to perform the functions of law ordering; 2) loss of access to temporarily occupied territories when they became the epicentre of mass crimes on the part of the invaders. It is seen that civil society and its numerous institutions, which were actively involved in the process of overcoming the consequences of aggression, became an obvious support for the state and the law enforcement system. The activity and degree of involvement of civil society and its institutions in activities related to overcoming the consequences of the russian federation full-scale war aggression against Ukraine demonstrate a high level of involvement of all kinds of civic institutions in this process, which is carried out in different directions (from the assistance of the army – to evacuation of civilians from the territories affected by war actions, etc.). One of the tasks assumed by civil society was the activity of documenting war crimes, which was actively involved in civil society institutions, both Ukrainian and international representatives. It is emphasized that the important role of social institutions in the process of documenting war crimes is emphasized by Nobel Prize Committee, which honoured the Peace Award 2022 for civil society representatives, in particular for their activities in the documentation of war crimes. As a result, the need to develop legislative mechanisms on the interaction of the state and its law enforcement system with civil society institutions in the direction of documenting war crimes is emphasized.

UNCLOS 1982 Analysis Regarding Problems of State Jurisdiction and Law Enforcement on Foreign Flag Ships

International Law of the Sea are legal principles governing the rights and authorities of a country over sea areas under its national jurisdiction (national jurisdiction). International Law has reign most interactions between States in the sea. The practice of illegal transshipment is a serious issue as it falls within both theft mode and smuggling through the transfer of cargo from one ship to another that occurs at sea. Including a crime which committed in the territory of one state but involving parties from another state or more. Law enforcement is a major concern when an offence of some kind of illegal transshipment occurs. The study aims to determine the jurisdiction of states in enforcing laws including in criminal matters that occurred over its sea where the country has sovereign rights, especially when the involvement of 3rd states party in the law enforcement on a ship which not entered into its territory, yet indicately committed a violation of the law in some states water area, this paper also study how the responsibility of 3rd states party towards of flag states of ships who feel harmed. This article was written using normative research methods with a statutory. Historical and conceptual approach explaining efforts from international organizations in resolving the issues of accountability of countries involved in the problem of Illegal Transshipment at sea in the 1982 UNCLOS perspective especially the process of law enforcement and dispute resolution by the International Tribunal for the Law of The Sea (ITLOS).

Delimitation of the Extended Continental Shelf in Somalia v. Kenya in the ICJ: A Critique

Abstract Somalia v. Kenya is the first case where the ICJ delimited the boundary line of the continental shelf beyond 200 nautical miles (the so-called “extended continental shelf”) between the Parties. Compared with the previous cases decided by other international tribunals on the same issue, the present case shows some differences. Particularly, the ICJ did not mention the three-stage methodology or other delimitation methods in the delimitation of the extended continental shelf, nor did it identify the relevant area or apply the disproportionality test. The ICJ in this case did not have any reliable evidence to ascertain the Parties’ entitlements to the extended continental shelf, and it did not make a clear determination on the issue of entitlements accordingly. The ICJ delimited the extended continental shelf by extending the boundary line within 200 nautical miles in the same direction, but its reasoning is not sufficient to support the decision. Besides, the Court did not pronounce that the delimitation line achieves an equitable solution. Indeed, in light of the relationship between entitlement and delimitation as well as the circumstances of the present case, the ICJ should have declined to delimit the extended continental shelf.

Integration of general principles of international environmental law into the law of the sea: Assessment and challenges

This paper discusses how general principles of international environmental law and the law of the sea regime, namely the United Nations Convention on the Law of the Sea (UNCLOS) and its related agreements, have interacted with each other over time. It analyses how the early adoption of international instruments influenced the adoption of Part XII of UNCLOS and how the content of Part XII has evolved through the adoption of new instruments as well as interpretation by international courts and tribunals. It argues that several environmental principles have become normative concepts in the context of the law of the sea, which implies potential development of Part XII of UNCLOS in the future to meet the contemporary environmental challenges.

A Battle of Ideas: Modes of Liability and Mass Atrocities

International criminal law (ICL) is premised upon the principle of individual criminal responsibility—the idea that individual persons, rather than states or other entities, bear criminal responsibility for mass atrocities. This principle has been operationalized in practice through the development of various legal theories, technically known as “modes of liability,” that delineate individual contributions to collective forms of violence. However, the modes of liability have been interpreted and applied differently across international courts and tribunals. Crucially, the International Criminal Court has construed those modes in a significantly more restrained manner than previous international tribunals, essentially limiting the set of situations in which a person could be found guilty of an international crime. This article contributes to the interdisciplinary literature on international criminal justice by exploring the social construction of different conceptualizations of the modes of liability in ICL and their transformations over time. Specifically, the framework focuses on the promotion and contestation of ideas among various actors participating in the international criminal justice field and the power dynamics that govern the field. This is a key issue for ICL and global justice because it demarcates the legal boundaries of “guilt” and “accountability” for international crimes.

Space Law and Space Mining, Exploring New Horizons Amid COVID-19 Pandemic

This study analyses the current scenario with COVID-19 affecting the international and Thai space law, and its impacts and corresponding repercussions upon the Thai economy, ASEAN region and then at international level. The methodology adopted for this study is a mixed method with qualitative research tools collected from key informant interviews and focus group discussions. The data analysis involves the Strength, Weakness, Opportunity, and Threat (SWOT) analysis, which has been integrated with Hierarchical Thematic areas to provide the supporting model for wholesome recommendations through analyzing the findings from the research. The key respondents involved several government officials associated with Thai space agencies and departments, along with judges, lawyers, researchers, academicians, non-government organizations (NGO) officials, and law students. The findings provided the need for adoption of Treaty leading to the creation of a space organization which would be accountable towards setting up a legal framework for commencement of space mining operations. The international space tribunal is to be created under this international space organization to resolve any disputes arising out of space mining. The overall implications of this research would lead to the sharing of the benefits of space mining with both developed and developing countries to enhance sustainable development for all mankind. Doi: 10.28991/ESJ-2023-SPER-09 Full Text: PDF

Qui tacet consentire videtur si loqui debuisset ac potuisset v. quo tacet neque negat neque utique fatetur (he who remains silent is considered to consent, if he must and can speak v. he who remains silent neither rejects nor accepts-affirms)

The present work aims to analyze silence/acquiescence as a legal fact that constitutes a passive conduct and produces legal effects. The paper is divided into three parts. The first analyzes silence as a legal act in international law, translates the phenomenon of acquiescence and elaborates the relative doctrine and jurisprudence as well as the limits that this term presents. We continue with the acquisitive prescription and the silence in the formation of the treaties. It compares acquiescence in dispute resolution as well as the establishment of jurisdiction of international courts and tribunals. The waiver applies to the area of international responsibility of a State and the decision-making mechanisms within the opting-out procedure. Silence as a legal fact in stricto sensu integrates a qualified conduct to which the production of legal effects compose an institution of international law. The production of their legal effects contemplate the existence of an involuntary silence such as l'estoppel by silence and the extinguishing prescription. The jurisprudence from the ICJ and from arbitral awards is extensive and helps to better know and understand the institution of acquiescence and the importance that the silence of States has in contemporary international law.

Langue and Parole of Investment Law

This article identifies the principal signs forming the language of investment law and arbitration, isolating for each of them its signifier and its signified in light of how such signs are used by arbitrators, practitioners and scholars. In light of this analysis, investment arbitration is assessed from a semiotic standpoint in order to verify whether it is possible, under this perspective, to consider international investment law as a multilateralised branch of international law, with a common language, customs and rules rightly referred to by international arbitral tribunals, or if the term “international investment law” is merely a conventional expression that simply groups together a plurality of micro-systems with no significant link among each other to justify the arbitrators' establishment of a de facto system of precedent and the constant reference to a non-existent body of international law rules on foreign investment.

Competing over the continental shelf: the legal versus the geophysical entitlements

Abstract For the past decades, international courts and tribunals have eluded the question of whether a State’s entitlement to a continental shelf beyond 200 nautical miles (nm) may extend within 200 nm of another State. The opacity around this question steered the International Court of Justice to surprisingly divide its oral proceedings in the pending dispute between Nicaragua and Colombia, so that it could address this legal predicament first. In similar circumstances, the International Tribunal for the Law of the Sea asked Mauritius and The Maldives to deal with the same question. While this is not the first time an international court or tribunal is asked to delimit a continental shelf beyond 200 nm, it will be the first where the ‘legal’ and the ‘geophysical’ entitlements enshrined in Article 76(1) of UNCLOS face each other. This article examines the current state of international law and proposes that the overlap between both entitlements is legally permissible, but the ‘legal’ entitlement enjoys further normative strength and will guide the equitable delimitation of the continental shelf.

In Search of a Queerer Law: Two People’s Tribunals in 1976

ABSTRACT In 1976, two people’s tribunals took place which considered issues relating to non-normative sexuality. ‘People’s tribunals’ are civil society initiatives that assert a popular jurisdiction which operates outside of both the state and international institutions. In Brussels, there was the International Tribunal on Crimes against Women, which treated ‘compulsory heterosexuality’ as a crime. On the other side of the world, in Sydney, there was the Tribunal on Homosexuals and Discrimination. These people’s tribunals are sometimes treated as forerunners to later developments relating to lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in international law. In this paper, by contrast, I engage in a queer reading of the Brussels and Sydney Tribunals, whereby I consider how the legal framings and procedures adopted by the two tribunals diverged from the LGBTI rights framework that would later develop. In doing so, my aim is to shine a light on alternative, queerer legal possibilities, as well as to open up a conversation about using people’s tribunals as a mode of queer activism into the future.