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24650 results in Public International Law

Page 419 of 1233

  • 6 - International Court of Justice (I): Organisation and Jurisdiction of the Court

  • from PART I - FOUNDATION OF INTERNATIONAL DISPUTE SETTLEMENT
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 128-174

  • Summary

    Main Issues

    The ICJ is a permanent court which is empowered to exercise contentious jurisdiction to decide inter-State disputes on the basis of the consent of the State Parties to the case and to give advisory opinions to the UN organs and specialised agencies. Decisions of the Court are binding on the parties with regard to the case. The jurisdiction of the ICJ is general in the sense that it can deal with all kinds of legal dispute between States. The ICJ thus provides an important insight into judicial settlement in international law. Chapter 6, along with Chapter 7, will seek to examine principal issues concerning the law and procedure of the ICJ. Following the Introduction (section 1), Chapter 6 will address the issues of the organisation and jurisdiction of the ICJ: parties before the ICJ (section 2), organisation of the ICJ (section 3), contentious jurisdiction of the ICJ (section 4), reservations to the optional clause (section 5), and advisory proceedings (section 6). In particular, the following issues will be discussed:

  • (i) What is the composition of the ICJ?

  • (ii) How is it possible to secure independence and impartiality of judges of the ICJ?

  • (iii) Is the institution of a judge ad hoc contrary to the requirement of independence and impartiality?

  • (iv) What are the modes of giving a State's consent to the jurisdiction of the ICJ?

  • (v) What is the function of reservations to the optional clause?

  • (vi) Are ‘automatic reservations’ (or ‘self-judging reservations’) valid in international law?

  • (vii) What are the problems with ‘instantly changeable reservations’?

  • (viii) What is the function of advisory jurisdiction of the ICJ?

    • INTRODUCTION

    The ICJ as a Principal Judicial Organ of the United Nations

    The ICJ was established by the Charter of the United Nations as the successor to the PCIJ. The ICJ came into existence with the election of its first judges in February 1946. The seat of the Court is established at The Hague, the Netherlands. In contrast to the PCIJ, which was not an organ of the League of Nations, the ICJ is the principal judicial organ of the United Nations. As an organ of the United Nations, the ICJ is supposed to contribute to achieving purposes and principles of the organisation by its strictly judicial activity. The ICJ is closely linked to the United Nations in three respects.

  • 5 - Inter-State Arbitration

  • from PART I - FOUNDATION OF INTERNATIONAL DISPUTE SETTLEMENT
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 105-127

  • Summary

    Main Issues

    Arbitration is one of the legal means of international disputes. An arbitral tribunal is established in an ad hoc manner on the basis of the consent of the parties in dispute and its decisions are binding upon the litigating parties. Arbitration is flexible compared to standing international courts and tribunals in the sense that the parties to a dispute can retain considerable control over the process of arbitration. Among various types of arbitration, this chapter will focus on inter-State arbitration. In particular, the following issues will be examined:

  • (i) What are the principal features of inter-State arbitration?

  • (ii) What are the problems associated with the selection of arbitrators?

  • (iii) What is the standard to determine the independence and impartiality of arbitrators?

  • (iv) What are the reasons that may deprive the validity of an arbitral award?

  • (v) What is the advantage of arbitration and what are its limitations?

    • INTRODUCTION

    As provided in Article 15 of the 1899 Convention for the Pacific Settlement of International Disputes, ‘[i]nternational arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law’. While, at present, multiple types of arbitration exist in the international community, this chapter will focus on inter-State arbitration.

    Like judicial settlement, the results of arbitration are legally binding upon the parties to the dispute. In this regard, arbitration is distinguished from diplomatic means of international dispute settlement. However, arbitration is distinct from judicial settlement in five respects (see Table 5.1).

  • (i) A composition of arbitral tribunals: While judicial settlement concerns international dispute settlement by pre-constituted international courts and tribunals, arbitrators are to be chosen by parties to a dispute on a case-by-case basis. Accordingly, the parties in dispute can control the composition of an arbitral tribunal. This procedure contributes to strengthening the confidence of the parties. Normally an arbitral tribunal is composed of three or five or, at most, seven members. The relatively small size of the arbitral organ makes the arbitration procedure simple and speedy. The preference for a more restricted tribunal might also have an advantage in case of more technical disputes.

  • 10 - Peaceful Settlement of International Environmental Disputes

  • from PART II - INTERNATIONAL DISPUTE SETTLEMENT IN PARTICULAR FIELDS
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 311-333

  • Summary

    Main Issues

    International disputes concerning environmental protection arise in various contexts of international relations. As there is no single judicial body specialised for the settlement of international environmental disputes, the issues of environmental protection are to be addressed by multiple judicial bodies, such as the ICJ, ITLOS and WTO panels, if these disputes cannot be resolved by diplomatic means. Furthermore, to protect the environment effectively, it is necessary to secure compliance with the obligations provided in environmental treaties. In this regard, non-compliance procedures set out in multilateral environmental treaties are crucial as an alternative dispute resolution. This chapter will seek to examine the following issues:

  • (i) What are the principal features of peaceful settlement of international disputes concerning environmental protection?

  • (ii) What is the role of international adjudication in the peaceful settlement of international environmental disputes and what are its limitations?

  • (iii) What is the role of the Treaty Commission in the peaceful settlement of international environmental disputes?

  • (iv) What is the difference between the non-compliance procedures and traditional means of international dispute settlement?

    • INTRODUCTION

    International disputes concerning environmental protection are arising in multiple contexts, such as the regulation of trans-frontier air pollution, the use of international watercourses, the regulation of marine pollution, the exploration and exploitation of natural resources, and international trade and commerce. In light of the diversity of issues relating to environmental protection, it is difficult and even illusory to define an ‘international environmental dispute’. For the purposes of this chapter, an environmental dispute is broadly understood as a dispute which includes an environmental aspect.

    In light of the increasing importance of environmental protection, including protection of natural resources and biological diversity, disputes will more frequently arise with regard to the interpretation and application of relevant rules of international law on this subject. Hence the peaceful settlement of international environmental disputes should be a crucial issue in international law. Following the introduction, this chapter analyses the role of international courts and tribunals in the settlement of international environmental disputes (section 2). It then examines the role of fact-finding commissions established in environmental treaties (section 3). Furthermore, this chapter moves on to address non-compliance procedures set out in multiple environmental treaties (section 4), before offering conclusions (section 5).

Page 419 of 1233