Principal Judicial Organ Research Articles

The Interpretation and Development of International Human Rights Law by the International Court of Justice

本文采用制度主义研究路径，分析了国际法院在国际裁判和执行人权方面的作用，以及它在阐释和发展基本人权规则和原则方面的贡献。国际法院是联合国主要机关之一，也是其主要的司法机关，在国际裁判机制中享有重中之重的特殊地位。国际法院对阐释和发展人权法的贡献可以从三个角度来看：第一，在程序角度，它进一步推动了人权的可诉性。第二，在实体角度，它不仅分析了非殖民化背景下的民族自决权问题和一些公约项下的人权保护范围，还处理了人权公约义务的领土范围问题、国家责任归属问题以及国际不法行为的赔偿问题，为国家、国际组织及其机构、其他法律实体甚至个人制定了行为标准。第三，在制度角度，它确保了联合国人权问题报告员的独立性和不可侵犯性，对联合国大会和安全理事会在维护国际和平与安全方面的职能作出建设性的阐释，并对其遵守国际人权义务的情况进行监督。然而，一些案件体现出国际法院在审理人权案件时存在的管辖权漏洞和其他障碍，它对国际法中某些有争议的问题持谨慎立场。这意味着国际法院有时在实施人权保护方面可能施加的影响有限。 This article uses an institutional approach when discussing the role of the ICJ within the context of international adjudication and enforcement of human rights, as well as its contribution to the interpretation and development of key human rights rules and principles. As one of the main UN organs and its principal judicial organ, the ICJ enjoys a somewhat special position as first among equals. The Court’s contribution to the interpretation and development of human rights can be seen from three aspects. Firstly, from the procedural aspect, the Court furthered the justiciability of human rights. Secondly, from the substantial aspect, the Court has dealt not only with the right to self-determination within the decolonisation context and the scope of human rights protection under the convention, but also with the territorial scope of human rights treaties’ obligations, aspects of attribution of State responsibility and issues concerning reparations for internationally wrongful acts, which lays down standards of conduct for States, international organisations and their organs, other legal entities and even individuals. Thirdly, from the institutional aspect, the ICJ ensures the independence and inviolability of UN human rights rapporteurs, the constructive interpretation of the functions of the General Assembly and the Security Council in matters of international peace and security and their monitoring of compliance with international human rights obligations. However, several cases have highlighted the jurisdictional gaps and other obstacles to litigating human rights cases before the Court. These cases have also highlighted the Court’s guarded position on certain controversial issues under international law. It shows that the limitations to the Court’s potential impact on the enforcement of fundamental human rights.

The International Court of Justice Today: Current Challenges and Prospects

Introduction. The study strives to analyze the current situation in the International Court of Justice, a number of the challenges facing it, as well as their possible solutions. Of the 18 disputes currently in the Court’s docket 14 were submitted on the basis of jurisdictional clauses of treaties, including in the field of the protection and promotion of human rights. Using the example of a number of cases, including those involving the Russian Federation, the author analyzes some of the problems resulting from this trend.Materials and methods. The methodological basis of the study includes the following general scientific and special methods of cognition: formal-logical, formal-legal, historical-legal, comparative-legal, analysis and synthesis.Results of the study. Firstly, the artificial limitation of the subject matter of the dispute in some instances is noted, which leads to questions of applicable law and causes risks of broad (or “evolutionary”) interpretation of treaties. Secondly, the problem of politicization of the Court’s activities by some of the Parties to the process is identified, forcing the Court to choose between justice and the political context in some of the “high-profile” cases. Thirdly, the Court’s inability to consider numerous “fact-intensive” cases brought by way of jurisdictional clauses of treaties (especially in the field of protection and promotion of human rights) is noted.Discussion and conclusions. The author sees possible solutions in ensuring the Court’s balanced approach to issues of establishing jurisdiction with due regard to the principle of States’ consent, as well as in adjusting its fact-finding methods. While in its practice the Court has not directly supported the proposals voiced by some of its members favoring evolutionary interpretation of the provisions of human rights treaties in order to lower the “threshold” for establishing the existence of a State’s consent to its jurisdiction, the author notes some recent changes in the Court’s approaches that cause concern. The author predicts a number of negative political and legal consequences of excessive judicial activism, including the risk of broad interpretation of the provisions of the relevant conventions and their abuse, as well as a decrease in the confidence of States in the dispute resolution system within the principal judicial organ of the United Nations. Maintaining the Court’s cautious approach to issues of establishing States’ consent to its jurisdiction will be of great importance to upholding its authority.

The Legitimacy of the International Court of Justice from the Vantage Point of UN Members

Abstract Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.

Does the international Court of Justice have an impact on security on the African Continent?

Africa has been home to several conflicts and insecurity due to several challenges ranging from climate change, hunger and malnutrition, diseases, increase in population and the scramble for the scanty resources on the continent. Among the problems in the continent is the border/territorial dispute occasioned by the demarcation and delimitation of boundaries by the colonial masters. These conflicts relating to border or territorial boundaries have exacerbated. Some of these cases were filed before the ICJ for adjudication and settlement. It is in the light of this that this paper examines the impact of the ICJ on security in Africa. The paper adopts the doctrinal method and examines the purpose of the League of Nations and the United Nations. The paper finds that the League and UN Charter encourages pacific settlement of disputes which includes judicial settlement. The paper notes that ICJ is the principal judicial organ of the UN and that the ICJ has settled several boundary disputes in Africa. Without the intervention of the ICJ these disputes had the potential to cause instabilities and full-scale wars. It observes that these settlements engenders peace and security and increases the confidence of African states in the Court. It further observes that ICJ also resolves cases that do not have boundary colorations. The paper notes that African states are willing to implement the decisions of the Court although they have not done so to demonstrate their willingness and readiness to obey international law. Instead there have been external influences or motives that have greatly contributed to the way states respond to the Court’s decision and notes that it can be argued that states have quickly complied with the decision of the ICJ when such decisions are in line with their domestic or political interests. The involvement of ICJ in resolving disputes in the region further reveals the continents growing confidence in the Court as the appropriate forum to resolve their disputes. This confidence has been demonstrated by the willingness of some African States to submit cases unrelated to territorial boundaries to the ICJ. These submissions reaffirm not only the willingness of parties to seek intervention of the ICJ to settle their disputes, but also the role and supremacy of the rule of law as the guiding framework to settle disputes among parties. The choice of the Court as a neutral arbiter removes the likelihood of bitter confrontation between governments and their peoples, particularly local communities, who may be unwilling to accept the outcome of the dispute. Based on the findings and observations, the paper recommends that ICJ should co-opt other regional and continental mechanisms in resolving boundary disputes. The paper notes the achievement of the AUBP and further recommends that ICJ should be a court of last resort for states. It then concludes by noting that Africa must be ready to find African solutions to African problems as regional mechanisms have better chances of understanding and resolving disputes better.

Moving the International Court of Justice from Bilateralism to Serving the Community Interest – A Proposal to Refrain from Being a ‘National Judge’

Abstract Empirical analysis shows that judges at the International Court of Justice (ICJ) tend to vote (85 to 90%) for their country of nationality. In order to outweigh this imbalance – already predicted in 1920 when drafting the Statute of the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ – the decision was taken to allow states which do not have a permanent judge of their nationality on the bench to nominate a judge ad hoc. The nationality bias is an important legitimacy issue for the Court. Inspired by Judge Thomas Buergenthal’s public appeal and along the lines of Judge Bruno Simma’s finding on the shift from ‘bilateralism to community interest in international law’, this article submits that a national judge at the ICJ should refrain from being a national judge by recusing herself when her home country is party to a case. In doing so she could protect herself from this nationality bias, which is a severe threat to (the appearance of) her impartiality and independence. Arguably, some one hundred years after the decision was taken against mandatory recusal on the basis of nationality when the Statute of the PCIJ was drafted, the international community is now demanding that individual judges of the principal judicial organ of the United Nations serve the community interest independently and impartially.

TIERED STANDARDS OF PROOF BEFORE THE INTERNATIONAL COURT OF JUSTICE

– Although the International Court of Justice is the principal judicial organ of the United Nations and is often tasked to resolve inter-state disputes concerning a wide array of subject matter, neither its rules nor jurisprudence readily disclose any consistent or even clear approach on the issue of standard of proof. We make the case that a tiered approach to standard of proof can and should be adopted, and in doing so, identify the various factors that may be relevant in understanding the court’s different positions in different situations.

The international court of justice at the crossroad between law and politics the example of the caselaw on nuclear weapons

The International Court of Justice is identified by Article 92 of the United Nations Charter as the “principal judicial organ of the United Nations”. This definition has consecrated the International Court of Justice as the World Court, as the guardian of the application of international law. Is this picture still actual? Is the International Court of Justice currently performing a guardian role? What does it happen when highly politically sensitive issues, like nuclear proliferation and nuclear disarmament, arrive before this Court? To address these questions, this work will analyse the case-law of the International Court of Justice on nuclear weapons. Retracing the jurisprudence of this Court on this issue will shade a light on many characteristics of the World Court and its members, questioning its concrete role in the present international arena.

Types of international judicial institutions and their role in ensuring the right to judicial protection

The article is devoted to the study of the types of international judicial institutions and their role in ensuring theright to judicial protection. It is noted that the Manila Declaration provides for a judicial settlement of disputes andarbitration. The International Court of Justice is the principal judicial organ of the United Nations. The InternationalCriminal Court is the permanent body with jurisdiction over persons responsible for particularly serious crimes, inaddition to national criminal jurisdictions. The Inter-American Court of Human Rights is an independent, conven-tional body whose function is to protect human rights in the states of North and South America. The Arab Court ofHuman Rights has not yet begun its work, although the Court’s mandate allows States parties to lodge complaints.The African Court of Human and Peoples’ Rights is an independent body whose purpose is to protect human rightsin African countries. The jurisdiction of the European Court of Human Rights extends to all matters of interpretationand application of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols.The Court of Justice of the European Union interprets EU law and provides for the settlement of disputes by the EU’snational government-institutions. It is emphasized that regional judicial institutions are designed to protect the rightsand freedoms of man and citizen. They are part of a subsidiary human rights protection mechanism that can be applied once all national remedies have been exhausted. Recourse to the International Court of Justice or arbitration isnot an unfriendly act in relations between states, but on the contrary indicates the use of peaceful means of dispute settlement. Unlike other international courts, only international criminal tribunals can be joined in a single proceeding.

The International Court of Justice and the Responsibility to Protect: Learning from the Case of The Gambia v. Myanmar

Abstract It is a commonplace in the R2P discourse to describe accountability measures as key means to implement the responsibility to protect. In particular, the International Criminal Court is regularly highlighted as a central actor, both in the literature, the annual R2P reports issued by the UN Secretary-General, and the subsequent debates in the UN General Assembly. Conspicuously absent from this conversation is the principal judicial organ of the United Nations, the International Court of Justice (icj). This article examines the potential role of the ‘World Court’, as The Gambia in November 2019 started a new case under the UN Genocide Convention against Myanmar before the icj. Analysing the limitations and prospects and existing icj case-law, the article concludes that the International Court of Justice can make an important and unique contribution to the responsibility to protect.

Appellate Jurisdiction of International Court of Justice: Old Wine in New Bottle

Abstract The International Court of Justice (ICJ) is the principal judicial organ under the United Nations (UN) competent to decide cases submitted by the States. The Jurisdiction of the ICJ is derived from Article 36 of the ICJ statute; further, the ICJ is competent to render advisory opinions when requested by the organs and specialised agencies of the UN. Before proceeding to the merits of the case, the ICJ has to satisfy that it has jurisdiction to decide upon the case. Moreover, the decisions of the ICJ are binding without appeal, except in cases involving revision. This article briefly analyses the Appeal Relating to the Jurisdiction of the International Civil Aviation Organisation Council (ICAO Council) under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar).

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates): So Far, So Good?

Abstract International law has a long history of dealing with racial discrimination, including its involvement in the perpetration of racial discrimination. However, in establishing a body of norms to tackle the problems of racial discrimination, several multilateral instruments have been adopted under the auspices of the United Nations addressing this malaise to various extents with the most extensive being the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 21 December 1965. While lauded for its singular and dedicated focus on racial discrimination, the Convention is challenged, at least interpretatively, as to the grounds for racial discrimination within its remit. Events occurring between Qatar and the United Arab Emirates on 5 June 2017 have afforded the International Court of Justice as the principal judicial organ of the United Nations, an opportunity—the third since the coming into effect of the Convention—to interpret this landmark treaty.

Brief Synopses of New Arabic Language Publications

Brief Synopses of New Arabic Language Publications

Allowing ‘leeway to expediency, without abandoning principle’? The International Court of Justice’s use of avoidance techniques

AbstractAs the principal judicial organ of the United Nations, the International Court of Justice (ICJ) has an ambitious mandate. However, due to its institutional design, the ICJ depends in large part on whether the states allow it to play this role, and their resistance can prove particularly damaging for the ICJ in this regard. Against this background, the article argues that resort to judicial avoidance techniques may be a pragmatic way for the ICJ to adapt to this reality, and that it seems likely that the ICJ has been relying on such techniques on several occasions. With reference to the ICJ’s case law, the article highlights different avoidance techniques at the ICJ’s disposal, proposes a categorization based on their effects, and evaluates the potential and risks each category holds for the ICJ. Accordingly, the article distinguishes between merits-avoidance techniques, issue-avoidance techniques, and resort to deferential standards of review. It demonstrates that relying on merits-avoidance techniques and issue-avoidance techniques is counterproductive and sometimes even dangerous for the ICJ. In contrast, resort to deferential standards of review allows the ICJ to reconcile its ambitious legal mandate with the political realities, and accordingly holds the greatest potential for the ICJ.

Infallible or Final?: Revisiting the Legitimacy of the International Court of Justice as the “Invisible” International Supreme Court

Abstract With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.

Юрисдикция Международного суда ООН: некоторые теоретические вопросы

Юрисдикция Международного суда ООН: некоторые теоретические вопросы

Remarks by Philippa Webb

I was a silent observer in deliberations and readings at the ICJ for fifteen cases, and my opinion of those was very positive. Laborious, yes, time-consuming, yes. But in the end, it improves the outcome. What I find so striking about the ICJ in comparison to other courts and so important with its status as the principal judicial organ is that it is the judges who hold the pen. There is a drafting committee of three judges, but after that the judges have readings where they engage with the draft paragraph by paragraph for the first reading, page by page for the second reading. In most cases this process leads to a net improvement in the final result, so I can see from an efficiency point of view it may not be ideal, but for the authority and the quality of the judgment I think it is very important.

Westphalia Waning? The Uneven Acceptance of International Courts

Is the uneven acceptance of international courts (ICs) an indication of different conceptions of state sovereignty? The conventional idea of the Westphalian model is that it involved the principles of state sovereignty, legal equality of states, and non-intervention in internal affairs. The 1648 Peace of Westphalia often serves as a historical reference, even though the modern conceptions of state sovereignty hardly goes back to the 17th century and the Westphalian treaties of Munster and Osnabruck (Osiander 2001; Beaulac 2004). The idea of sovereignty evolved during the 19th and 20th centuries, yielding several versions. The one relevant here is international legal sovereignty, which implies recognition of polity and territoriality by other states and domestic authority structures that exclude external actors (Krasner 1999). To explore whether different conceptions of sovereignty within the modern states system affect states’ acceptance of ICs, we categorize states according to a set of variables which includes colonial background, geopolitical position, political regime, legal system and resources. We then analyze how these factors correlate with the ratification of different types of ICs – two independent courts and two conflict resolution mechanisms connected to states’ broader acceptance of international organizations. We analyze the acceptance of four ICs with a global reach – the International Court of Justice (ICJ), the International Criminal Court (ICC), the WTO dispute settlement mechanism (DSM), and the dispute settlement system under United Nations Convention on the Law of the Sea (UNCLOS), including the International Tribunal for the Law of the Sea (ITLOS). These ICs vary in interesting respect. Acceptance of the WTO dispute settlement follows from ratification of the treaty establishing the WTO, and similarly for dispute settlement under UNCLOS and for the criminal jurisdiction of the ICC. However, acceding to UNCLOS implies that states have the opportunity to use ITLOS, the ICJ or ad hoc arbitration for dispute settlement. The ICJ was established in 1945 as the principal judicial organ of the United Nations, but the UN member states are only bound by the competence of the ICJ if this is explicitly accepted by the relevant state. This selection allows us to explore the difference between accepting substantive treaty obligations sanctioned by an IC, and only accepting the IC. The motivation of states may be to ensure general acceptance of the substantive obligations, or of the IC – or both. We employ a full dataset for when or if a country accepted each of these four courts. Using logistic regression analysis, we look for the links between a selected number of independent variables and the tendency to join the treaty that established each court. Is there a systematic pattern that indicates how the uneven judicialization of international law works?

The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?

The International Court of Justice (ICJ) has mostly emphasized substance over form and developed a pragmatic, flexible, objective, and fact-based analytical approach to jurisdiction. That is until a recent series of judgments veering towards jurisdictional formalism. However, to truly reflect its designation as the “World” Court, the UN's principal judicial organ must surely adjudicate some of the “big cases” with global security implications and involving important obligations erga omnes beyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacy capital.1 As a corollary, accepting this role might entail that the Court interpret its jurisdiction in a flexible and progressive manner, which had always been its mantra up until recently, so that the “big cases” have a chance of getting their foot in the door and being litigated.

Wpływ opinii doradczych Międzynarodowego Trybunału Sprawiedliwości na postępowanie przed Trybunałami Administracyjnymi w systemie ONZ

The International Court of Justice (ICJ) is a principal judicial organ of the United Nations. The main task of ICJ is to settle disputes submitted to it by the states and is also entitled to give advisory opinions which are given on the motion of some United Nations organs and specialized agencies. The expression that ICJ is a “principal judicial organ of the United Nations” doesn’t mean that it is the only one judicial organ within the framework of the United Nations. The United Nations Administrative Tribunal (UNAT) was established by the legal force of the General Assembly resolution 351 A(IV) of 9 December 1949 r. The main purpose of the UNAT was to decide legal employment disputes between United Nations staff and the Organization. In 1955 the Statute of UNAT was amended and the Committee on Application for Review of Administrative Tribunal Judgement was competent to seek advisory opinion form ICJ and this opinion was binding. However Committee only in three cases requested the ICJ to give advisory opinion. Those opinions concerned inter alia the competence of ICJ to respond to the question, the right of Committee to submit such motion, the principle of equality of arms. In spite of that since of the 1st of July 2009 the new system of administration of internal justice was established – the United Nations Dispute Tribunal and the United Nations Appeal Tribunal, which consider the appeals against judgments rendered by the United Nations Dispute Tribunal, the issues discussed in advisory opinions of ICJ on the matters of appealing against a judicial decision of UNAT are still highly topical, especially in the context of the maintained in force competence of ICJ to review judgement of The Administrative Tribunal of the International Labour Organisation.

Sovereignty through the Inter-Disciplinary Kaleidoscope

In the beginning was state sovereignty, or so the oft-quoted statement by the International Court of Justice according to which “state sovereignty” is “the fundamental principle (...) on which the whole of international law rests” appears to indicate. There is a remarkable circularity at play between this now classic statement of the principal judicial organ of the United Nations and the fact that Western international lawyers often use the etiological myth (of Westphalia to retrace the very origins of their discipline to the emergence of the concept of state sovereignty itself. It comes, thus, as no wonder that in the early stages of the 21st century, when international law is portrayed in leading textbooks, as “an ubiquitous presence in global policy-making and in academic and journalistic commentary”, international lawyers continue to speculate about the locus classicus of their discipline. Indeed, sovereignty is one of the two core themes that J. Trachtman The Future of International Law. Global Government and H.Kalmo and Q.Skinner’s edited collection Sovereignty in Fragments have in common. The second core-theme that both books share is inter-disciplinarity. This appears, in both books, as the kaleidoscope through which “the past, present and future of a contested concept” is examined.