INTRODUCTION. The International Court of Justice is the only international judicial body established by the Charter of the United Nations as “the principal judicial organ of the United Nations”; and ...the obligations of States under the Charter of the United Nations shall prevail over obligations under any other international agreement (Art. 103 of the Charter of the United Nations); the execution of the decisions of the Court may be ensured by the UN Security Council (Art. 94 of the Charter of the United Nations). All UN member States, including the Russian Federation, are parties to the Statute of the International Court of Justice, and its Statute forms an integral part of the UN Charter (Art. 92). The present article explores in detail the theoretical and practical issues related to the establishment of the jurisdiction of the International Court of Justice. It contains the analysis of the features, advantages and disadvantages of the methods of establishing the jurisdiction of the Court in the context of the current practice of the Court and the legal positions of States. MATERIALS AND METHODS. The article is based on the analysis, first of all, of the documents of the Court related to the establishment of its jurisdiction in international disputes referred to it. This study also examines the practice of States in the field of recognition of the Court's jurisdiction under the Statute, as well as related scientific works of Russian and foreign scholars in the field of international law. The methods used in the course of this study include general and specific (existing in the legal science) scientific cognition methods, including the methods of formal logic, legal history and comparative legal research. RESEARCH RESULTS. The article shows that it is not legally correct to give identical meaning to the terms “competence of the Court” and “jurisdiction of the Court” used in the Statute of the International Court of Justice, although some authoritative foreign jurists do so. Within the meaning of the UN Charter, the term “competence of the Court” is broader in its meaning than the term “jurisdiction of the Court”: the latter is used only in connection with disputes of States that are resolved by the International Court of Justice, i.e. with the establishment of the jurisdiction over the dispute referred to the Court. The article classifies the ways in which States express their consent to the jurisdiction of the Court under its Statute into three main categories: (1) referral of a case to the Court by means of a special agreement concluded between the contesting States; (2) jurisdiction of the Court over disputes submitted to it on the basis of international agreements; (3) recognition by the State of the jurisdiction of the Court by means of a unilateral declaration. The article indicates the features of different ways of expressing the consent of States to the jurisdiction of the Court in the context of the practice of States and of the Court. DISCUSSION AND CONCLUSIONS. By means of illustration the authors refer to inter-state disputes, where jurisdictional issues were raised at the Court. The analysis of the use of special agreement (or “compromis”) shows that this method of consent to the jurisdiction of the Court is typical for the consideration of an already formed dispute, the existence of which the relevant States do not contest, and its transfer to the Court is expected by the respondent State. The article also reveals the legal disadvantages inherent in this method. The article reveals legally advantageous as well as problematic aspects related to disputes referred to the Court on the basis of jurisdictional clauses of treaties. Attention is devoted to the analysis of unilateral declarations of States recognizing the jurisdiction of the Court, which may be conditional. It is the practice of States to formulate legally sophisticated conditions that has objectively complicated the whole “Optional Clause” system provided for by the UN Charter. In particular, the article indicates the difficulties of interpretation and application of temporal conditions; difficulties of legal assessment of the content of some conditions made by States in their declarations recognizing the jurisdiction of the Court; cases when excessively broad conditions nullify the recognition of the jurisdiction of the Court. The authors conclude that each of the named methods of expressing States’ consent to the jurisdiction of the International Court of Justice has its own characteristics, advantages and disadvantages. The system of the Court’s jurisdiction established by the UN Charter shows its efficiency only when all legal possibilities provided for in Art. 36 of the Statute are taken into account, and when international legal norms provided in the UN Charter, especially the core principles of international law, are strictly complied with. Selective, fragmentary interpretation of the legal norms applicable to the establishment of the jurisdiction of the Court is not permitted. Each of the methods of recognizing its jurisdiction performs its function only in the general context of the rights and obligations of States under the UN Charter; every method is effective in concrete circumstances and acceptable to disputing States in accordance with their sovereign will.
Commentary: Were they being properly reported, two critically important court hearings in February 2024, in London and The Hague, would expose the US ‘rules-based order’ as a hollow sham. Both posed ...globe-spanning threats to our most basic freedoms. Neither received more than perfunctory coverage in Western establishment media such as the BBC. One was a week-long hearing by the International Court of Justice (ICJ) over a United Nations General Assembly request for an advisory opinion over Israel’s illegal occupation of the Palestinian territories and the other was a last-ditch appeal of WikiLeaks founder Julian Assange against efforts by the United States to extradite him so that he can be locked away for the rest of his life. EDITORIAL NOTE: After the editorial of Pacific Journalism Review and the lead article in this edition (Vol 30, No 1&2) about the fate of WikiLeaks founder Julian Assange were printed, the Australian journalist was set free and he arrived back in Australia after a plea bargain. The winner of his country’s Walkley Award for journalism excellence, Assange was freed by a US federal court in Saipan, Northern Mariana Islands, on 26 June 2024 after a plea bargain to plead guilty to one charge of violating the US Espionage Act and the judge sentenced him to 62 months, jail time already served in the UK on remand. His 14-year struggle for freedom was over, but his lawyers say they will press for a full US presidential pardon.
This study expands upon prior analysis of the case citation network of the International Court of Justice (ICJ) by demonstrating that reverse page-rank outperforms hub and authority score in ...identifying significant sources of precedent. Application of reverse page-rank reveals that though ICJ decisions that are well grounded in prior cases tend to become more important sources of precedent, this relationship is weak when compared to the US Supreme Court. This tempers past conclusions that the ICJ has become more similar to common law systems but supports a view of the Court as an institution that balances consistency in its application of international law with the statutory limits on using its decisions as sources of such law. In addition, a novel method for constructing agreement networks between judges is leveraged to identify ICJ judges with influential positions. This provides evidence that certain judges may be more indicative of which decisions become important in the future. Though the strength of this influence is also limited, it nevertheless suggests that some ICJ judges may better represent the development of international legal precedent than others.
•The International Court of Justice takes a balanced approach to citing its precedent.•Reverse page-rank better identified future precedents than other centralities.•Agreement networks can highlight judges with more influential legal stances.
Abstract
In the span of two decades, Third World approaches to international law (TWAIL) experienced a meteoric rise, becoming not only one of the most interesting but also one of the dominant ...approaches to international law. This Afterword to the Foreword by Antony Anghie reflects upon the rise of TWAIL and its significance to the discipline of international law. I argue that having become part of the disciplinary mainstream, TWAIL ‘civilizes’ international law, making it more difficult for international lawyers to ignore or dismiss the colonial origins and legacies of their field. As TWAIL leaves a mark on international law, new spaces for international legal action by the peoples of the global South might have been opened. Does greater action weaken TWAIL’s central insights about colonial origins and legacies? Maybe, and if so, a mainstream TWAIL opens also disciplinary space for other critical approaches that shine light on Third World experiences of international law that point not just to oppression but also to North/South engagement and, potentially, Southern resistance.
On 31 January 2024, the International Court of Justice rendered its judgment on the merits of a case initiated by Ukraine against the Russian Federation in 2017. Ukraine alleged numerous violations ...by Russia of two treaties: the 1999 International Convention for the Suppression of the Financing of Terrorism and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. This blog post provides a brief overview of the decision and argues that the Court sidestepped the task of reconstructing what has happened in reality via judicial fact-finding. This approach comes at the expense of several legal errors. The harsh realities of the conflict and, most importantly, the human suffering on the territories of Ukraine occupied by Russia seem far removed from the grandeur of the Peace Palace.
This article scrutinises the International Court of Justice’s advisory opinion on Kosovo’s independence declaration, exploring submissions from Serbia, Kosovo, and key stakeholders like the USA, ...United Kingdom, Russia, Germany, Spain, and France. The authors delve into legal arguments regarding Kosovo’s secession, emphasising state sovereignty versus self-determination. By dissecting the ICJ’s decision and legal principles invoked, they shed light on complex international law dynamics related to geopolitical conflicts over statehood and self-determination. By synthesising analysed perspectives, the article offers insights into the intricate legal and geopolitical dynamics surrounding Kosovo’s independence and contributes to the broader discourse on self-determination and statehood in international law. Ultimately, this research can be a valuable resource for policymakers, scholars, and practitioners interested in the questions of sovereignty, self-determination, and the application of international law in contemporary conflicts.
Abstract
Fraud on investor–State arbitration tribunals is somewhat uncommon but hardly rare. This article summarises 17 publicly known investor–State arbitration awards addressing fraud on the ...tribunal, to contribute to this underdeveloped field of law. The article notes that investor–State tribunals have confronted this wrongdoing in various ways, ranging from avoiding findings of fraud to imposing arbitral sanctions. It notes, however, the apparent dearth of referral to criminal processes arising out of proven fraud. It concludes with a summary of the potential remedies available to the tribunal when confronted with fraud.
El presente artículo centra su análisis en el consentimiento estatal como concepto central y fundamental en el derecho internacional. Aborda su naturaleza jurídica general, su relación con principios ...del derecho internacional como el pacta sunt servanda, consuetudo est servanda y la buena fe; y su clasificación de acuerdo con la doctrina. Define con rigurosidad el conAsimismo, el autor analiza el consentimiento estatal desde la perspectiva del derecho internacional procesal, particularmente desde la óptica de la Corte Internacional de Justicia. Al respecto, aborda las modalidades de acceso a la jurisdicción de la Corte Internacional de Justicia, así como las prerrogativas que esta tiene para hallarse competente en relación con el consentimiento de las partes.cepto y sus efectos en la esfera internacional.Por último, el artículo propone un análisis del caso del Laudo Arbitral de 1899, entre Guyana y Venezuela, a partir de la relativización del consentimiento estatal a manos de la Corte Internacional de Justicia. Concluye, al respecto, que la Corte generó un equívoco al pretender analizar si el consentimiento manifestado por los Estados había sido inequívoco.
In its jurisprudence, the ICJ has developed a hierarchy of sources it will rely on to resolve territorial disputes: it prioritizes a boundary treaty between the state litigants, followed by ...agreements between the states’ colonial predecessors, and finally state litigants’ actions displaying their authority over the disputed territory. The Court’s practice therefore leaves no room for local populations to contribute to boundary-making decisions. Given the status self-determination holds in international law today, and the repercussions possibly faced by such populations in certain territorial disputes, there is cause to consider that the desires of local populations should be considered in the Court’s legal reasoning. This article first unpacks the reasons that self-determination is not brought up by state litigants on one hand, nor by the Court on the other hand. It notes that self-determination is only rhetorically addressed by states if buttressing their interests. It therefore attempts to reconcile self-determination with territorial disputes, suggesting how peoples’ desires may be factored into the Court’s approach.
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