Trivia: NO Individual Opinions by Judges at the International Court of Justice – UPDATED

Published on September 9, 2012        Author: 

Following my previous question on the ICJ case in which every judge has written an individual opinion, I have a question dealing with the opposite phenomenon:

In which International Court of Justice case or advisory proceedings have none of the judges involved in the case, appended an individual (or joint) opinion to a judgment or opinion of the Court?

In other words, in the case(s) or proceedings in question, there was only a single judgment - the Judgment of the Court. No judge wrote a separate opinion, a dissenting opinion or a declaration? Just to be clear, I am asking only about individual or joint opinions appended to judgments by the Court. By judgment, I mean a judgment either on the merits or on a preliminary objection regarding jurisdition or admissibility. I also include advisory opinions.  I exclude from the question orders on provisional measures or other procedural orders.It is quite common for there to be no individual opinions appended to orders on procedural matters. However, it is rare for the judges to be so restrained when it comes to judgments. Usually, one or more of them wishes to point out something that the Court’s judgment has not said or that they disagree with.

UPDATE: The answer I was looking for was indeed the Maritime Delimitation in the Black Sea (Romania v Ukraine) case (2009), which as far I know is the only “judgment” (in the sense used above) of the International Court of Justice which was not only reached unanimously but where no judge appended a separate opinion, dissenting opinion or declaration. Congratulations to Tamás Hoffmann.

But congratulations also to Daniel Wisehart who points out that there are several PCIJ cases that also fit this description. I have to confess I hadn’t looked into the PCIJ practice on this point. There was one case by the 3 judge Chamber of Special Procedure (which has not been used in the ICJ era) (see his comment below) relating to interpretation of a judgment – which does count as it is a case on the merits of that particular question. Daniel then goes on to make the make the point that between 1922 and 1930 there were several advisory opinions of the PCIJ (all reported in the PCIJ Series B) where no judge appended an individual opinion. In fact, the dominant practice in this period was to have the opinion of the Court without any individual opinions. However, this changed after 1930. From that point on, we see no more cases/opinions (reported in PCIJ Series A/B) without individual opinions or declarations. Daniel then says:

“What could be the reason for this. I would spontaneously guess that there could be two possible explanations. First, maybe the advisory opinions in the twenties were less politicized then today. This means they were really asked in order to get a legal answer – as it is done in France where the Conseil d’État advises the government on legal issues. Second, maybe the ”continental” background of judges in the Court made them more reluctant to append any declaration, since this practice derives from the common law system they were just not so familiar with it and did not want to weaken the authority of the Court. But this still would not explain why there was a shift in the thirties What do you think?”

A very interesting question indeed! Any answers by readers? Tamas had made some suggestions. Any other ideas? Read the rest of this entry…

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Update on State Immunity

Published on September 7, 2012        Author: 

For those interested in recent developments in domestic state immunity acts, see earlier posts here and here, Canada has now announced that Iran will be formally listed as a state sponsor of terrorism. Canada has closed its embassy in Iran and declared personae non gratae all remaining Iranian diplomats in Canada. The news release from the Canadian Department of Foreign Affairs and International Trade (DFAIT) can be found here. Earlier attempts to sue Iran in Canada’s courts can be found herehere and here.

Update: In a separate news release, now available here, Canada has announced that it is listing Syria and Iran as state supporters of terrorism.


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Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Published on September 6, 2012        Author: 

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank.  On 9 July 2012, the Commission’s report was released.  The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation.  It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel.  Indeed, they are well-worn, tired, and have been thoroughly discredited in the past.  They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law.  The Report states:

“Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.”

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International Law Trivia Questions: Prize Offered! Individual Opinions by All Judges in an International Court of Justice Case – UPDATE WITH ANSWER AND FURTHER UPDATE

Published on September 4, 2012        Author: 

UPDATE: See below for updates with answer to the question posed below and to the further question asked below.

At the end of 2011, I had a series of posts asking some trivia questions regarding the International Court of Justice and international judges in general (see here, here, here, here and here). There seemed to be some interest from readers so over the next few days I will pose a few more trivia questions about international tribunals that might be of interest to readers.

This time around we will be offering a prize. At least one reader who is able to provide the correct answers to all the trivia questions I will be asking over the next week or two will receive a free year long subscription to the European Journal of International Law.

Today, my question is:

In which ICJ case or cases has every judge on the court appended an individual opinion to the Court’s judgment?

By individual opinion, I mean either a separate opinion, a dissenting opinion or a declaration. The questions asks about cases where every judge has appended an opinion so I am including ad hoc judges as well.

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Nada v. Switzerland Judgment Forthcoming

Published on September 3, 2012        Author: 

The Grand Chamber of the European Court of Human Rights will deliver its judgment in the case of Nada v. Switzerland on 12 September. The case concerns the applicant being prohibited from leaving an Italian enclave in Switzerland due to Swiss implementation of UN Security Council anti-terrorism sanctions, including a travel ban. For our previous coverage and a detailed preview of the issues arising in the case, see this post. More commentary will follow.

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Ecuador v. United States Inter-State Arbitration under a BIT: How to Interpret the Word “Interpretation”?

Published on August 31, 2012        Author: 

There is an inter-State arbitration pending between Ecuador and the United States under the Bilateral Investment Treaty (BIT) between those two countries (Treaty between United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993). The Ecuador v. US case , which was initiated in June 2011, is, as far as I am aware, a very very rare instance of inter-State arbitral proceedings under a BIT. As is well known, one of the main purposes of BITs is to give investors the right to bring claims against the host state of investment. This feature of BITs, and the vast number of such treaties, has meant that investor-State arbitrations under BITs have replaced diplomatic protection as the primary means of settling investment disputes. There have been hundreds of investor-State proceedings before arbitral tribunals.  However, BITs also contain compromissory clauses by which disputes concerning the interpretation or application of disputes under these treaties can be brought before arbitral tribunals established under the BIT. The only other inter-State BIT cases that I am aware of are the recent Italy and Cuba cases which were discussed in the April 2012 issue of the American Journal of International Law. In general, States leave it to the investor to protect its rights under the BIT.

The present proceedings brought by Ecuador are particularly interesting for a couple of reasons: one specific to investment law, the other relating to general international law. First of all, as the case arises out of Ecuador’s dissatisfaction with the interpretation given by an earlier investor-State arbitral tribunal (Chevron and Texaco Petroleum Company v. Republic of Ecuador, Partial Award, 30 March 2010) to a particular provision of the Ecuador – US BIT,  the case may be construed as a way by which Ecuador is trying to use the inter-State procedure as a way of appealing the results of a case brought under the investor-State procedure. There have been concerns by many that there is no appellate procedure in the investment treaty system and this case seems to be an attempt to create one.

Secondly, Ecuador’s case raises a general question about how one interprets the standard compromissory clause to be found in treaties where jurisdiction is granted to an  international tribunal over disputes between the parties “concerning the interpretation or application of the treaty”. Ecuador is of the view that the US has a different interpretation from it of a provision of the BIT. However, Ecuador does not argue that the US has violated the BIT, it only seeks to resolve a question about how the BIT should be interpreted. So, does the tribunal have jurisdiction over a case where the parties disagree about how a treaty should  be interpreted but where there is no allegation that the respondent party has actually misapplied the treaty or done any act which constitutes a violation of the treaty. The question is whether this standard formulation of a compromisory clause means that international tribunals can only deal with concrete disputes about violations of treaties or whether they can play a general advisory function with respect to the meaning of the treaty. In short, what is a dispute about “interpretation”of a treaty? Read the rest of this entry…

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The African Union, the ICC and Universal Jurisdiction: Some Recent Developments

Published on August 29, 2012        Author: 

Over the last few years, the African Union (AU) Assembly, (composed of Heads of States and Governments), has concerned itself with a number of issues relating to international criminal law (see previous posts by me here, here, and here; and by Max Du Plessis and Chris Gevers here and here). Last month, the AU Assembly held its 19th Summit and continued the trend of making decisions with regard to international criminal justice (see here for the full text of the Assembly decisions). Earlier this week, Max Du Plessis wrote about the decision of the AU Assembly at this summit to postpone consideration of a draft protocol that would amend the Statute of the African Court of Human Rights and Justice to give it jurisdiction to try international crimes. As has now become usual, the AU Assembly, at this latest summit, also adopted decisions on the International Criminal Court and on the Abuse of the Principle of Universal Jurisdiction. Both of these decisions contain new developments from previous decisions which are analysed below. There is a call for African States to conclude bilateral immunity agreements and the AU has adopted a Model Law on Universal Jurisdiction.

The Impact of the ICC on the Venue of the Summit

The question of where the AU summit would be held was dominated by the fallout of the strained relationship between the AU and the International Criminal Court. The venue of the Summit was changed from Malawi to Addis Ababa, the seat of the AU, just one month before the meeting as the AU refused Malawi’s request for Sudanese President Omar Al Bashir not to be invited to the meeting. Malawi, a party to the Statute of the International Criminal Court, stated that it had an obligation to arrest Bashir, who is wanted by the ICC, were he to visit Malawi. Read the rest of this entry…

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A case of negative regional complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes

Published on August 27, 2012        Author: 

Max du Plessis, Visiting Fellow at the Oxford Institute for Ethics, Law and Armed Conflict.  He is an Associate Professor, University of KwaZulu-Natal, Durban; Senior Research Associate, International Crime in Africa Programme, Institute for Security Studies; and a Barrister, South Africa.

At their latest African Union (AU) Assembly meeting, held in July, African Heads of State were asked to adopt a draft amended protocol on the Statute of the African Court of Justice and Human Rights (hereafter ‘African Court’) which would have expanded the jurisdiction of the African Court to include the competence to prosecute individuals for international crimes. The draft protocol would have created an International Criminal Law Section of the African Court with criminal jurisdiction over the international crimes of genocide, war crimes and crimes against humanity, as well as several transnational crimes such as, terrorism, piracy, and corruption.

Thankfully, the Heads of States decided not to adopt the amended protocol at that meeting and to postpone consideration of this proposal. Of course, we should all applaud if the AU were in due course to unveil a comprehensively funded, strongly resourced, legally sound, and politically backed African court that fearlessly pursues justice for those afflicted by the continent’s warlords and dictators, at the same time as fulfilling effectively its parallel human rights roles. However, given (i) the process by which the draft protocol had been put together thus far, and (ii) the contents of the draft protocol, the creation of an effective court had seemed unlikely. More time was needed to consider various aspects of the proposals and one can only hope that the time that has been afforded by the postponement of consideration of the protocol will be used wisely. This post deals with the flawed process that had been adopted as well as some concerns regarding the content of the draft amended protocol. I expand on these issues in a recent paper for the Institute for Security Studies.

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Second Latin American Society of International Law Conference

Published on August 25, 2012        Author: 

Congratulations to the organizers of the second conference of the Latin American Society of International Law (LASIL-SLADI), here in Rio de Janeiro. This was the second conference for this relatively new regional international law society, with the first conference having been held in Mexico in 2010.

Organized alongside the 10th Brazilian conference on international law, the LASIL-SLADI meeting successfully brought together representatives from regional societies from five continents. The conference began with a unique opening panel, hearing perspectives from the African Foundation for International Law, the Asian Society of International Law, and the European Society of International Law, as well as two national societies for the United States and Canada to ensure that the Western Hemisphere was fully represented. (I’m here representing the Canadian Council on International Law and the Canadian perspective.)

Whether there is a regional approach to international law, or what that means in terms of content, is one of the questions underlying the discussions here, with regionalism having some paradoxical connotations when juxtaposed against national societies that have become global in their interests (and with respect to at least one or two national societies, global in their memberships). As Her Excellency Judge Xue of the International Court of Justice remarked in her insightful presentation for the Asian Society of International Law perspective, what does regionalism mean to international law and should there be a different approach? There is also the question of why is there growth in the establishment of regional international law societies when we also discuss global approaches to shared problems and concerns? Of course, practical considerations such as costs through regional collaboration, and the desire to provide a forum for intellectual exchange, also feature in these discussions.

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Filed under: Conference, EJIL Reports
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So, you want to do a PhD in international law?

Published on August 22, 2012        Author: 

I’ve become frustrated recently at the lack of practical information for those contemplating PhD level study, especially in my own field. Information about the practical pitfalls, perils and joys of further study. So I decided to write a series of blog posts on the topic, pointing to relevant resources. (This is aimed at graduate students in the English speaking Commonwealth: Europe, the US and elsewhere I can’t necessarily vouch for.)

This will be a longish post, and you probably think: ‘Ah, this will be about writing a killer application to my preferred school!’ Yes, that will be covered briefly. But first, grab a seat, we need to share a few home truths – and ask some hard questions.

What’s my motivation?

If you do want to do a PhD in international law the first question to ask yourself is: ‘Why?’

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