Permanent Court Research Articles

The role of the International Criminal Court in criminalizing Israeli attacks on the Palestinian people

The International Criminal Court, which is governed by the Rome Statute, is the first permanent court established on the basis of a treaty established to hold accountable the perpetrators of the most serious crimes at the global level, such as war crimes, crimes against humanity, and genocide. On July 17, 1998, the work of the Diplomatic Conference on the Establishment of an International Criminal Court concluded with the approval of the adoption of the Statute of the Court. The International Criminal Court is a permanent and independent institution and is not considered one of the sections of the United Nations. The Statute clarifies that the main task of prosecuting and punishing the perpetrators of crimes lies with States parties, and the Court complements those efforts. The Court is considered the focal point for the application of the international criminal justice system, to include national courts, international courts and courts that include national and international elements. The increase in the intensity of international conflicts and wars in many parts of the world has had an impact on the increase in the commission of war crimes against civilians and the high rates of human rights violations, in the absence of an appropriate mechanism adopted by the international community to reduce these violations and punish and prosecute those who are behind them, whether they are individuals, states, organizations or governments.

Permanent Court of Arbitration (PCA)

Permanent Court of Arbitration (PCA)

Концепція прав національних меншин

At the very beginning it is important to define the main components that constitute the whole theory and idea as such of the minority rights. The concept of minority expresses how the legal regulation reflects the existence of minority, what is understood by the notion ‘minority’ and what criteria are used in order to identify certain social groups as minorities. Regarding the definition of the concept ‘minority’, until now there is no generally accepted definition, neither at the international level nor at the European one. It appears to be a certain agreement on some particular elements of the definition, though they are not fully accepted and interpreted in the same way. There are several important reasons concerning this phenomenon. The first one is that states are in fear of consequences after the recognition of minorities which may lead to secessionist movements. This can put at stake the territorial integrity of the State. Though, some rather successful efforts in this field were made by different representatives in order to make clarifications regarding the definition of ‘minorities. According to these facts the Permanent Court of International Justice (PCIJ), the UN Sub- Commission and some prominent authors attempted to define the concept ‘minority’. The Court stated that this concept has rather minoritarian character which makes it relevant in the meaning of ‘minority’. According to the court a ‘community’ is: a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions maintaining their form of worship, insuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other. Apart from the definition given by the Court, this guideline shows the requirement of numerical condition which means the group that is in minority in comparison with the prevailing part.

Conceptualisation and operationalisation of minorities in international law: Past experiences and new avenues

AbstractDespite decades of scholarly effort, there is still no universally accepted definition of the concept of minorities or the criteria for minority membership. Beyond its theoretical importance, the lack of a definition also has practical significance, as it may easily lead to the abuse of minority rights. In this paper, we offer a brief historical overview of the various definitional attempts in international law, including those enshrined in legal documents as well as in the practice of adjudicatory bodies. Starting from the era of the League of Nations and the case-law of the Permanent Court of International Justice, we continue by looking at major developments within the United Nations (with special attention to the practice of the Human Rights Committee) as well as the Council of Europe (and the approach of the Advisory Committee of the Framework Convention for National Minorities). Our aim is to explore the trajectory from old to recent conceptual endeavours, where the major dividing line is drawn between the relatively narrow notion of minorities (covering only autochthonous or traditional groups) as opposed to a more inclusive view (including also immigrants and, potentially, visitors under the minority protection mechanisms).

The Contribution of the Permanent Court of Arbitration to the Development of International Law: Claims Commissions, Mixed Arbitrations & Conciliation

The Contribution of the Permanent Court of Arbitration to the Development of International Law: Claims Commissions, Mixed Arbitrations & Conciliation

Extrajudicial Killings over the Drug War in the Philippines under the ICC Jurisdiction

Extrajudicial killings in the Philippines have escalated, resulting in severe human rights violations exacerbated by the enforcement of drug war policies, which have led to numerous deaths without due legal process. These killings constitute serious crimes falling within the jurisdiction of the International Criminal Court (ICC). This paper examines how the ICC can serve as an international mechanism for addressing extrajudicial executions in the Philippines' drug war. Employing normative legal research methodology, the study utilizes legal sources focused on normative law as primary data. The ICC, functioning as a permanent court, is mandated to prosecute individuals responsible for international crimes under the Rome Statute. The findings confirm that extrajudicial killings in the Philippines qualify as international crimes, thus within the ICC's purview. Consequently, the ICC's involvement should not be construed as a challenge to national sovereignty but rather as a catalyst for strengthening global criminal justice frameworks. By holding perpetrators accountable, the ICC can stimulate the development of national criminal justice systems worldwide and encourage the enactment of domestic laws addressing egregious human rights violations and breaches of international humanitarian law. This role underscores the ICC's mission to promote universal ideals and ensure justice for victims of grave international offenses.

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

The International Criminal Court: current problems and ways of their solution

The article examines the current problems of the functioning of the International Criminal Court, in particular the main problem – insufficient expected effectiveness, problematic issues of jurisdiction, initiation of proceedings, duration of proceedings and its influence on the effectiveness of the ICC, as well as the issue of proper cooperation between the ICC and states.
 It is emphasized that the establishment of international criminal justice bodies was a response to impunity for committed international crimes, which arises due to the ineffectiveness of national legal systems in the fight against international crimes. It is emphasized that the effectiveness of the International Criminal Court largely depends on cooperation with states and international organizations, as well as available financial and human resources.
 It is concluded that there is an urgent need for the international community to review the mechanisms of response to those states that, by not extraditing suspects, de facto contribute to impunity for committed international crimes; effective countermeasures and sanctions by states and international organizations should be applied to them.
 Emphasis is placed on the expediency of amending the Rome Statute in accordance with Article 121 of the Rome Statute, giving the International Criminal Court unconditional ratione materiae jurisdiction over the crime of aggression, as is the case with genocide, crimes against humanity and war crimes. It is emphasized that the International Criminal Court should become a permanent court that will have such jurisdiction; in its turn, this will reduce the risk of committing new armed aggressions.
 A partial solution to the problem of the excessive length of criminal proceedings at the ICC is proposed by increasing funding and recruiting additional personnel.

The International Court of Justice

In this scientific paper my main focus of research is based on the composition, structure and main function of judges of the International Court of Justice according to countries and geographical regions where they come from, as according to Article 9 members of the court represent the main forms of civilization and the main system legal of the world. This means customary law, civil law and socialist law (now post-communist law). hen the task and function of international judges of law is to resolve disputes between states in accordance with international law and to give advisory opinions on international legal matters. The ICJ is the only international court that adjudicates general disputes between countries, with its decisions and opinions serving as primary sources of international law. Then, we have the creation of the first permanent institution created for the purpose of resolving international disputes was the Permanent Court of Arbitration (PCA), which included all the major world powers as well as some smaller states, and resulted in the first multilateral treaties dealing with the conduct of war. Among them was the Convention for the Settlement of International Disputes in the Pacific, which defined the institutional and procedural framework for arbitration proceedings to be conducted in The Hague, the Netherlands. Although the proceedings would be supported by a permanent bureau - whose functions would be equivalent to that of a secretariat or court register - arbitrators would be appointed by opposing states from a larger group provided by each member of the convention.

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.

Digital Evidence in Disputes Involving States

The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

ASEAN and the Major Powers in the South China Sea: the Role of Law, Diplomacy, and Deterrence in Moderating Sovereignty Claims

Abstract This article focuses on the rising strategic significance of the South China Sea for the Association of Southeast Asian Nations (ASEAN) and the major powers. It traces the origins of the South China Sea (SCS) dispute, and the claimants that are directly involved (China, Vietnam, Philippines, Malaysia, and Brunei). It then examines why balance of power considerations have influenced and continue to influence the role of regional states as well as the major external powers (China, United States, India, and Japan, together with other interested middle powers such as Australia and Canada). It argues that the SCS is an international maritime regime (global commons), and therefore subject to the principles and practice of International Law, specifically United Nations Convention on the Law of the Sea (UNCLOS). Any attempt at nationalisation of the SCS will be rejected under international law, as evidenced by the 2016 decision of the Permanent Court of Arbitration (PCA), with respect to the submission in 2013 by the Philippines on its dispute with China, for compulsory arbitration by the The Hague Court. It notes the lack of unity in ASEAN over how to deal with China’s assertive conduct in the SCS. It suggests that only a dynamic balance of power approach, which includes external power engagement with regional interests, will create the necessary space for diplomacy and dialogue by upholding the primacy of the rule of law, freedom of the open seas, and the legitimate rights and interests of all claimant states. It concludes that law, politics, diplomacy, and deterrence are interactive variables requiring strategic management to promote shared interests, stability and security in the South China Sea.

The ICS vs. the ICSID system: a possible compromise in the light of the sustainable development

The current inclination to direct investment efforts towards sustainable development, coupled with the 2030 Agenda for Sustainable Development, unveiled in 2015, which included the 16th goal of granting equal access to justice and reinforcing the rule of law on a universal level, has brought investor-state dispute settlement (ISDS) mechanisms to the forefront of global investment discussions. The ICSID has carried out a crucial role in overseeing the ISDS system, offering arbitration facilities for disputes between investors and states for over six decades. However, the ISDS system has faced criticism in recent years. In response, a new Investment Court System (ICS) implemented by the EU that aims to address these concerns by establishing a permanent court formed with judges who have been appointed by member states in advance and are distributed to disputes in a rotating and random manner. It also limits the parties’ freedom to opt the applicable law and considers that the substantive provisions in investment agreements are the applicable law to the raised disputes and inserts an appellate mechanism review for law and fact matters as well. The paper discusses the relationship between the ICS and the ICSID system in the light of sustainable development and examines a possible compromise between both systems by considering the ICS as inter se modification of the ICSID convention based on investigation of its compatibility with requirements of the VCLT. Ultimately, the paper finds that recognizing the ICS as an amendment between some parties to the ICSID convention does not conflict with the VCLT.

The Genesis of Minority Rights in the League of Nations and Beyond

This article examines the development of minority rights and its protection system in the League of Nations. It traces the evolution of the concept of “minority” and the challenges of defining and designating it in international law. The paper also examines the content, guarantees, and implementation of the protection regime that the League of Nations established for certain minority groups in Europe, based on the treaties and instruments adopted at the 1919 Paris Peace Conference and subsequently. The article further investigates the role of the Permanent Court of International Justice and Minority Committees in interpreting and enforcing the minority rights obligations of the concerned states. In the end, the article provides a critical assessment of the achievements and shortcomings of the minority protection systems of the League and reflects on how these systems were integrated into the framework of the United Nations.
 Dhaka University Law Journal, Vol. 33(1), 2023 P.23-48

History of the diplomatic negotiation in the International court of justice narrative, a review of the ICJ jurisprudence

Diplomatic negotiation serves as a fundamental prerequisite to both arbitration and judicial settlement, a dynamic that unfolds alongside the evolution of conventional international law. Negotiation stands as an essential and integral precursor to the arbitral resolution. In this comprehensive review, we delve into the jurisprudence of the Permanent Court of International Justice (P.C.I.J.) and the International Court of Justice (I.C.J.), shedding light on the critical role of negotiation in achieving agreements and peaceful dispute resolutions. The prevailing customary foundation mirrors an era in international law marked by the "quasi-legislative role" of traditional sources. The obligation to negotiate may seemingly encroach on State sovereignty while endeavoring to establish a framework for nonviolent conflict resolution. Thus, it becomes imperative to initially address the juxtaposition between the sovereignty principle and the obligation to negotiate. Considering these realities, sovereignties are compelled to find common ground, underscoring the pivotal role of diplomatic negotiation in binding what is commonly referred to as the community of nations, evolving towards a higher level of political awareness ensure sustainable commitments between Nations and international stakeholders.

“Calculate the Limits of the Possible”: Scandinavian Legal Diplomacy, Diplomatic Arenas and the Establishment of the Permanent Court of International Justice

Abstract This article considers the role of the Scandinavian states in the establishment of the Permanent Court of International Justice (pcij) and how the construction of the pcij and the wider League of Nations shaped Scandinavian legal diplomacy. It does so by analyzing legal-diplomatic practices within five significant diplomatic arenas between 1917 and 1920, from the early Scandinavian committee work, via the Advisory Committee of Jurists to the First League Assembly. Our article argues that we need to be attuned to how the emergence of the League of Nations and the particular sequence of multilateral negotiations that led to the creation of the pcij transformed Scandinavian (legal) internationalism and aligned the three countries to the new international order.

The Relationship Between Public International Law And Domestic Law In The International Perspective and the Effects on it due to Globalization

This research, titled "The Relationship between Public International Law and Domestic law in the Perspective of Treaties and International Caselaw and the Effects of Globalization - Analytical Study-" tries to highlight the relationship between public international law and domestic law from the point of view of international treaties and international caselaw, through the judgments of international arbitration, Permanent Court of International Justice and the International Court of Justice, as well as the positions of international criminal tribunals, and it examines the changes in this relationship as a result of the effects of globalization.
 Through this endeavor, it was concluded that the position of international treaties has been and continues to prevail over domestic laws when there is a conflict or collision between their rules, and along with international legal provisions, there is an abundant caselaw that have supported the position of international treaties in this regard. Moreover, globalization has affected the relationship between public international law and domestic law by trying to unify international legal rules and domestic laws, and then work to build a unified legal block that is not assigned to a specific geographical spot.

6. Permanent Court of Arbitration (PCA)

6. Permanent Court of Arbitration (PCA)

Equitable representation on international benches and the appointment of tribunal members in investor–State dispute settlement: a historical perspective

Abstract The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function.

Book Review of Victor Stoica, Remedies before the International Court of Justice: A Systemic Analysis

1. The book under review is Victor Stoica, Remedies before the International Court of Justice: A Systemic Analysis, Cambridge University Press, 2021, 288 pp. The ICJ’s analysis of remedies has always remained on the fringes. The author through this work attempts to study comprehensively the remedies before the ICJ and the consequences. The author has divided the book into nine chapters, highlighting the various dimensions of remedies and the ICJ’s approach to them. 2. Chapter 1 highlights the jurisdictional competence of the ICJ to grant compensation; accordingly, States have challenged the jurisdiction of the ICJ to grant remedies, especially if no legal instruments confer this power. 3. Chapter 2 studies the availability of remedies at the provisional measures phase; as the author opines, “the availability of provisional measures or protective measures is a general principle of international law and national law” (p.13). Although in the Permanent Court of International Justice (PCIJ), the remedies sought were not granted during provisional measures, in the Chorzow factory case, the PCIJ couldn’t provide remedy as it would amount to an “interim judgment” (p.14). However, the ICJ granted restitution in kind through its provisional measures; in the Tehran Hostage case, it was observed in the said case that “Iran should ensure that the premise of the embassy of the United States is restored to its possession” (p.17). Also, cessation was granted in the “Nicaragua case” for the breaches of international obligations and specific performance in the Avena Judgment. Further, for the “breach of provisional measures” (p.19), States are provided “satisfaction”, i.e., “declaratory relief rather than coercive remedies such as compensation” (p.20). The author concludes by stating that remedies are available for non-compliance with provisional measures. However, it is argued through S.S. Wimbledon, Chorzow Factory and subsequent cases that the ICJ is competent to grant remedies even though the treaty did not contain an express provision; in the Corfu channel case, it was underscored that the ICJ is competent to decide the quantum of compensation, this position was maintained in the subsequent cases.