CONSTANZE SCHULTE
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199276721
- eISBN:
- 9780191707667
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276721.003.0004
- Subject:
- Law, Public International Law
This chapter analyzes the practice of the Court with regard to judgments and provisional measures from the perspective of compliance. It argues that the record of compliance and efficiency of ...
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This chapter analyzes the practice of the Court with regard to judgments and provisional measures from the perspective of compliance. It argues that the record of compliance and efficiency of provisional measures is far from satisfactory and offers a stark contrast vis-à-vis the overall positive picture of compliance with judgments.Less
This chapter analyzes the practice of the Court with regard to judgments and provisional measures from the perspective of compliance. It argues that the record of compliance and efficiency of provisional measures is far from satisfactory and offers a stark contrast vis-à-vis the overall positive picture of compliance with judgments.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0004
- Subject:
- Law, Public International Law
This chapter explores the Court's jurisdiction to indicate provisional measures of protection. It highlights the first provisional measures case before the International Court of Justice, the ...
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This chapter explores the Court's jurisdiction to indicate provisional measures of protection. It highlights the first provisional measures case before the International Court of Justice, the Anglo-Iranian Oil Co. case. In 1978 the Court promulgated revised Rules of Court, with changes in the provisions regarding provisional measures. Clearly, the existence of jurisdiction over the merits, both ratione personae and ratione materiae and its absence can each be ‘manifest’ to the Court, although there is a difference between the two. If the proceedings are regularly instituted, the Court's prima facie jurisdiction to indicate provisional measures has to be established from such judicial examination of the title of jurisdiction and of the objections to it that is feasible in the short time available within which the decision on the provisional measures has to be made.Less
This chapter explores the Court's jurisdiction to indicate provisional measures of protection. It highlights the first provisional measures case before the International Court of Justice, the Anglo-Iranian Oil Co. case. In 1978 the Court promulgated revised Rules of Court, with changes in the provisions regarding provisional measures. Clearly, the existence of jurisdiction over the merits, both ratione personae and ratione materiae and its absence can each be ‘manifest’ to the Court, although there is a difference between the two. If the proceedings are regularly instituted, the Court's prima facie jurisdiction to indicate provisional measures has to be established from such judicial examination of the title of jurisdiction and of the objections to it that is feasible in the short time available within which the decision on the provisional measures has to be made.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0007
- Subject:
- Law, Public International Law
This chapter focuses on the institution of provisional measures proceedings, and states that a request for provisional measures gives rise to proceedings that are independent of the principal ...
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This chapter focuses on the institution of provisional measures proceedings, and states that a request for provisional measures gives rise to proceedings that are independent of the principal proceedings on the merits of the claim. It discusses the composition of the Bench of the ICJ, and elaborates on the additional President's duties regarding a special power to call upon the parties to act in such a way as will enable any order that the Court or Tribunal may make on the request for provisional measures to have its appropriate effects. The Permanent Court first raised the issue of its power to act proprio motu when dealing with provisional measures in the South-Eastern Greenland case in 1932. In principal, provisional measures are only relevant to contentious proceedings.Less
This chapter focuses on the institution of provisional measures proceedings, and states that a request for provisional measures gives rise to proceedings that are independent of the principal proceedings on the merits of the claim. It discusses the composition of the Bench of the ICJ, and elaborates on the additional President's duties regarding a special power to call upon the parties to act in such a way as will enable any order that the Court or Tribunal may make on the request for provisional measures to have its appropriate effects. The Permanent Court first raised the issue of its power to act proprio motu when dealing with provisional measures in the South-Eastern Greenland case in 1932. In principal, provisional measures are only relevant to contentious proceedings.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0008
- Subject:
- Law, Public International Law
This chapter explores the powers of the International Court of Justice to indicate provisional measures in situations of dire emergency. New States are showing increasing willingness to establish ...
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This chapter explores the powers of the International Court of Justice to indicate provisional measures in situations of dire emergency. New States are showing increasing willingness to establish their legal rights through judicial procedures of the International Court, which is slowly bringing the Court into the general context of the international mechanisms for the maintenance and restoration of international peace and security. The Court's work in the sphere of provisional measures of protection, as it has developed from its cautious beginnings at the start of the existence of the Permanent Court in 1927, is probably the most significant of the Court's activities for the settlement of international disputes and the maintenance of international peace and security, the prime objective of the United Nations of which the Court is a principal organ.Less
This chapter explores the powers of the International Court of Justice to indicate provisional measures in situations of dire emergency. New States are showing increasing willingness to establish their legal rights through judicial procedures of the International Court, which is slowly bringing the Court into the general context of the international mechanisms for the maintenance and restoration of international peace and security. The Court's work in the sphere of provisional measures of protection, as it has developed from its cautious beginnings at the start of the existence of the Permanent Court in 1927, is probably the most significant of the Court's activities for the settlement of international disputes and the maintenance of international peace and security, the prime objective of the United Nations of which the Court is a principal organ.
Constanze Schulte
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199276721
- eISBN:
- 9780191707667
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276721.001.0001
- Subject:
- Law, Public International Law
This book examines the compliance record of state parties to proceedings before the International Court of Justice (ICJ), the principal judicial body of the United Nations. It undertakes a ...
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This book examines the compliance record of state parties to proceedings before the International Court of Justice (ICJ), the principal judicial body of the United Nations. It undertakes a comprehensive analysis of the follow-up of the ICJ's judgments and interim measures from the Court's creation in 1945 until the present day. ICJ judgments and provisional measures from the Corfu Channel case in the late 1940s to the Arrest Warrant Case decided in 2002 are examined, with particular focus on state practice. After explaining the legal basis for the obligation of compliance and the enforcement of ICJ decisions, the book analyses all decisions that gave rise to an obligation of compliance. The analysis is contextual, taking into account the history of the dispute, the underlying political interests, the parties' attitudes towards involvement of the ICJ, and the substance of the applicable law. This analysis reveals that the compliance record for judgments is generally satisfactory, whereas that for provisional measures is at first sight rather poor. Yet the record for provisional measures must be understood in a more nuanced light. In several cases, the applicant gained at least a certain benefit from the decision even though it was not (or was not fully) implemented. The book examines the reasons for the difference in the track records of judgments and provisional measures and explores mechanisms that could be conducive to enhanced compliance.Less
This book examines the compliance record of state parties to proceedings before the International Court of Justice (ICJ), the principal judicial body of the United Nations. It undertakes a comprehensive analysis of the follow-up of the ICJ's judgments and interim measures from the Court's creation in 1945 until the present day. ICJ judgments and provisional measures from the Corfu Channel case in the late 1940s to the Arrest Warrant Case decided in 2002 are examined, with particular focus on state practice. After explaining the legal basis for the obligation of compliance and the enforcement of ICJ decisions, the book analyses all decisions that gave rise to an obligation of compliance. The analysis is contextual, taking into account the history of the dispute, the underlying political interests, the parties' attitudes towards involvement of the ICJ, and the substance of the applicable law. This analysis reveals that the compliance record for judgments is generally satisfactory, whereas that for provisional measures is at first sight rather poor. Yet the record for provisional measures must be understood in a more nuanced light. In several cases, the applicant gained at least a certain benefit from the decision even though it was not (or was not fully) implemented. The book examines the reasons for the difference in the track records of judgments and provisional measures and explores mechanisms that could be conducive to enhanced compliance.
CONSTANZE SCHULTE
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199276721
- eISBN:
- 9780191707667
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276721.003.0005
- Subject:
- Law, Public International Law
This chapter considers the lessons learned from the actual practice of states with regard to the issue of compliance and evaluating prospects for the future. The analysis of practice has shown a ...
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This chapter considers the lessons learned from the actual practice of states with regard to the issue of compliance and evaluating prospects for the future. The analysis of practice has shown a generally satisfactory compliance record for judgments and a more problematical (yet somewhat successful) one for provisional measures. For both types of decisions, the Nicaragua case marked a paradigm shift as the last in a series of instances of open defiance and non-appearance. The authority of judgments or provisional measures was not subsequently challenged. The limited efficiency of the provisional measures following the Nicaragua decision is owing to reasons other than an overt non-compliance: all parties pretended to have complied with the provisional measures.Less
This chapter considers the lessons learned from the actual practice of states with regard to the issue of compliance and evaluating prospects for the future. The analysis of practice has shown a generally satisfactory compliance record for judgments and a more problematical (yet somewhat successful) one for provisional measures. For both types of decisions, the Nicaragua case marked a paradigm shift as the last in a series of instances of open defiance and non-appearance. The authority of judgments or provisional measures was not subsequently challenged. The limited efficiency of the provisional measures following the Nicaragua decision is owing to reasons other than an overt non-compliance: all parties pretended to have complied with the provisional measures.
Shabtai Rosenne
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.001.0001
- Subject:
- Law, Public International Law
Provisional measures of protection, the international equivalent of an interim injunction, are assuming growing importance in international law. These measures are designed to protect the rights of ...
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Provisional measures of protection, the international equivalent of an interim injunction, are assuming growing importance in international law. These measures are designed to protect the rights of the parties pending the final decision in a dispute. Since the establishment of the Permanent Court of International Justice in 1921 through its replacement by the International Court of Justice (ICJ) in 1945, the Court's power to indicate provisional measures has been controversial because it has been unclear whether such orders are binding. In 2001 the ICJ set that controversy at rest by deciding that it imposes binding obligations on the parties, and that non-compliance could give rise to an instance of state responsibility and a cause of action. This rule has also been incorporated into the UN Convention on the Law of the Sea, one of the most important law-making conventions adopted in the last fifty years. These changes make a comprehensive re-examination of the law and practice of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) necessary, both from an academic perspective and as a matter of practice and procedure. The book concludes that its work with provisional measures of protection may be the most significant of the ICJ's activities for the settlement of international disputes and the maintenance of international peace and security — the prime objective of the United Nations of which the ICJ is a principal organ.Less
Provisional measures of protection, the international equivalent of an interim injunction, are assuming growing importance in international law. These measures are designed to protect the rights of the parties pending the final decision in a dispute. Since the establishment of the Permanent Court of International Justice in 1921 through its replacement by the International Court of Justice (ICJ) in 1945, the Court's power to indicate provisional measures has been controversial because it has been unclear whether such orders are binding. In 2001 the ICJ set that controversy at rest by deciding that it imposes binding obligations on the parties, and that non-compliance could give rise to an instance of state responsibility and a cause of action. This rule has also been incorporated into the UN Convention on the Law of the Sea, one of the most important law-making conventions adopted in the last fifty years. These changes make a comprehensive re-examination of the law and practice of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) necessary, both from an academic perspective and as a matter of practice and procedure. The book concludes that its work with provisional measures of protection may be the most significant of the ICJ's activities for the settlement of international disputes and the maintenance of international peace and security — the prime objective of the United Nations of which the ICJ is a principal organ.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0003
- Subject:
- Law, Public International Law
This chapter takes an account of the Statute of the International court of Justice that left the development of the law and practice relating to provisional measures of protection in the hands of the ...
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This chapter takes an account of the Statute of the International court of Justice that left the development of the law and practice relating to provisional measures of protection in the hands of the Court. It further discusses the Article 30 of the Statute that asserts the Court to frame rules for carrying out its functions, and also about the Rules of 1922, 1931, 1936, 1946, and 1972 along with the Rules of 1978. The Provisional Measures in Annex VII arbitration tribunal possesses an original jurisdiction to prescribe provisional measures, independently of its jurisdiction to modify, revoke, or affirm provisional measures already prescribed by International Tribunal for the Law of the Sea, but how the arbitral tribunal does this will depend on its Rules of Procedure.Less
This chapter takes an account of the Statute of the International court of Justice that left the development of the law and practice relating to provisional measures of protection in the hands of the Court. It further discusses the Article 30 of the Statute that asserts the Court to frame rules for carrying out its functions, and also about the Rules of 1922, 1931, 1936, 1946, and 1972 along with the Rules of 1978. The Provisional Measures in Annex VII arbitration tribunal possesses an original jurisdiction to prescribe provisional measures, independently of its jurisdiction to modify, revoke, or affirm provisional measures already prescribed by International Tribunal for the Law of the Sea, but how the arbitral tribunal does this will depend on its Rules of Procedure.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0005
- Subject:
- Law, Public International Law
Urgency, which is specifically mentioned as one of the requirements for the prescription of provisional measures, is the focus of this chapter. Urgency as such is not mentioned in the Statute of the ...
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Urgency, which is specifically mentioned as one of the requirements for the prescription of provisional measures, is the focus of this chapter. Urgency as such is not mentioned in the Statute of the International Court of Justice; however it can be implied when the Court considers that the circumstances so require it. As a matter of substance, the International Court of Justice has rarely mentioned urgency by name, preferring to recite the circumstances, which have led it to exercise, or not its power. Thus, urgency is mentioned specifically only in Article 290, paragraph 5, of the Law of the Sea Convention, and for International Tribunal for the Law of the Sea it is regulated in Articles 89 to 95 of the Rules of the Tribunal.Less
Urgency, which is specifically mentioned as one of the requirements for the prescription of provisional measures, is the focus of this chapter. Urgency as such is not mentioned in the Statute of the International Court of Justice; however it can be implied when the Court considers that the circumstances so require it. As a matter of substance, the International Court of Justice has rarely mentioned urgency by name, preferring to recite the circumstances, which have led it to exercise, or not its power. Thus, urgency is mentioned specifically only in Article 290, paragraph 5, of the Law of the Sea Convention, and for International Tribunal for the Law of the Sea it is regulated in Articles 89 to 95 of the Rules of the Tribunal.
Sienho Yee
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198268376
- eISBN:
- 9780191683510
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268376.003.0025
- Subject:
- Law, Public International Law
This chapter examines the doctrine forum prorogatum and the evidence of provisional measures in the International Court of Justice (ICJ). It explains that forum prorogatum has been applied by the ...
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This chapter examines the doctrine forum prorogatum and the evidence of provisional measures in the International Court of Justice (ICJ). It explains that forum prorogatum has been applied by the Permanent Court of International Justice (PCIJ) and the ICJ as a flexible way of founding the jurisdiction of the Court over the merits of a dispute. It suggests that a case must first exist before the Court may proceed to consider a request for provisional measures, and that there must be prima facie evidence of jurisdiction before the Court may indicate provisional measures.Less
This chapter examines the doctrine forum prorogatum and the evidence of provisional measures in the International Court of Justice (ICJ). It explains that forum prorogatum has been applied by the Permanent Court of International Justice (PCIJ) and the ICJ as a flexible way of founding the jurisdiction of the Court over the merits of a dispute. It suggests that a case must first exist before the Court may proceed to consider a request for provisional measures, and that there must be prima facie evidence of jurisdiction before the Court may indicate provisional measures.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0006
- Subject:
- Law, Public International Law
This chapter explores the period of time within which provisional measures may be indicated. A party may make a request to the International Court of Justice for the indication of provisional ...
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This chapter explores the period of time within which provisional measures may be indicated. A party may make a request to the International Court of Justice for the indication of provisional measures at any time during the course of the proceedings in the case in connection with which the request is made. The word ‘party’ in this context refers to a State recognized by the Court as a party to the case in question. It emphasizes on Article 94, paragraph 2, of the ICJ Rules and Article 124, paragraph 2, of the ITLOS Rules provide that a judgment becomes binding on the parties on the day of the reading. Unless the court or tribunal should specify otherwise when ordering provisional measures, such an order remains in force until either it is changed or cancelled by the competent court or tribunal or until the final decision on the merits or other definitive decision of the court or tribunal.Less
This chapter explores the period of time within which provisional measures may be indicated. A party may make a request to the International Court of Justice for the indication of provisional measures at any time during the course of the proceedings in the case in connection with which the request is made. The word ‘party’ in this context refers to a State recognized by the Court as a party to the case in question. It emphasizes on Article 94, paragraph 2, of the ICJ Rules and Article 124, paragraph 2, of the ITLOS Rules provide that a judgment becomes binding on the parties on the day of the reading. Unless the court or tribunal should specify otherwise when ordering provisional measures, such an order remains in force until either it is changed or cancelled by the competent court or tribunal or until the final decision on the merits or other definitive decision of the court or tribunal.
SHABTAI ROSENNE
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199268061
- eISBN:
- 9780191699245
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268061.003.0001
- Subject:
- Law, Public International Law
This chapter summarizes the nature and the purpose of the concept of provisional measures of protection in the modern law of international judicial proceedings. The power of an international court or ...
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This chapter summarizes the nature and the purpose of the concept of provisional measures of protection in the modern law of international judicial proceedings. The power of an international court or tribunal to order provisional measures of protection is commonly understood as coming within the scope of its ‘incidental jurisdiction’. One of the features of the development of international law in the 19th century has been the increasing use of arbitration procedures, culminating in the Alabama arbitration of 1881–2. The chapter also focuses on the contributions of Asser who was a prominent member of the Dutch delegation at The Hague Peace Conference of 1899. He was actively responsible for the preparation of the Convention for the Pacific Settlement of International Disputes, containing the first internationally agreed code of arbitral procedure. It further discusses about the Bryan Treaties that provided recourse to a Permanent International Commission when ordinary diplomatic proceedings had failed and the parties did not have recourse to arbitration.Less
This chapter summarizes the nature and the purpose of the concept of provisional measures of protection in the modern law of international judicial proceedings. The power of an international court or tribunal to order provisional measures of protection is commonly understood as coming within the scope of its ‘incidental jurisdiction’. One of the features of the development of international law in the 19th century has been the increasing use of arbitration procedures, culminating in the Alabama arbitration of 1881–2. The chapter also focuses on the contributions of Asser who was a prominent member of the Dutch delegation at The Hague Peace Conference of 1899. He was actively responsible for the preparation of the Convention for the Pacific Settlement of International Disputes, containing the first internationally agreed code of arbitral procedure. It further discusses about the Bryan Treaties that provided recourse to a Permanent International Commission when ordinary diplomatic proceedings had failed and the parties did not have recourse to arbitration.
Yoshifumi Tanaka
- Published in print:
- 2015
- Published Online:
- October 2015
- ISBN:
- 9780190270513
- eISBN:
- 9780190271909
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190270513.003.0012
- Subject:
- Law, Public International Law
With the emergence of the concept of community interests, it appears that international law is entering into a new stage of its development. In this regard, an issue arises whether and to what extent ...
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With the emergence of the concept of community interests, it appears that international law is entering into a new stage of its development. In this regard, an issue arises whether and to what extent international courts and tribunals can respond to the protection of community interests. Provisional measures prescribed by the International Tribunal for the Law of the Sea (ITLOS) for protecting the marine environment provide an important insight into this subject. Thus this contribution examines ITLOS provisional measures in the context of marine environmental protection focusing on three issues: (1) the role of ITLOS provisional measures in the regulation of marine pollution and conservation of marine living resources, (2) the Tribunal’s manner in which the requirements to prescribe provisional measures are examined, and (3) the effectiveness of ITLOS provisional measures.Less
With the emergence of the concept of community interests, it appears that international law is entering into a new stage of its development. In this regard, an issue arises whether and to what extent international courts and tribunals can respond to the protection of community interests. Provisional measures prescribed by the International Tribunal for the Law of the Sea (ITLOS) for protecting the marine environment provide an important insight into this subject. Thus this contribution examines ITLOS provisional measures in the context of marine environmental protection focusing on three issues: (1) the role of ITLOS provisional measures in the regulation of marine pollution and conservation of marine living resources, (2) the Tribunal’s manner in which the requirements to prescribe provisional measures are examined, and (3) the effectiveness of ITLOS provisional measures.
Yoshifumi Tanaka
- Published in print:
- 2018
- Published Online:
- November 2018
- ISBN:
- 9780190923846
- eISBN:
- 9780190923860
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190923846.003.0012
- Subject:
- Law, Public International Law
In the “Enrica Lexie” Incident case between Italy and India, two judicial organs, i.e. the International Tribunal for the Law of the Sea (ITLOS) and the Annex VII Arbitral Tribunal prescribed ...
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In the “Enrica Lexie” Incident case between Italy and India, two judicial organs, i.e. the International Tribunal for the Law of the Sea (ITLOS) and the Annex VII Arbitral Tribunal prescribed provisional measures. It is rare that ITLOS and the Annex VII Arbitral Tribunal prescribed different provisional measures in the same dispute. The “Enrica Lexie” Incident case provides an insight into the procedural law governing provisional measures under the UN Convention on the Law of the Sea. This article examines the provisional measures prescribed by ITLOS and the Annex VII Arbitral Tribunal in the “Enrica Lexie” Incident case focusing particularly on three issues: (1) the relationship between the request by Italy submitted to ITLOS and that submitted to the Annex VII Arbitral Tribunal, respectively, (2) the existence of the urgency of the situation, and (3) the legal effect of considerations of humanity.Less
In the “Enrica Lexie” Incident case between Italy and India, two judicial organs, i.e. the International Tribunal for the Law of the Sea (ITLOS) and the Annex VII Arbitral Tribunal prescribed provisional measures. It is rare that ITLOS and the Annex VII Arbitral Tribunal prescribed different provisional measures in the same dispute. The “Enrica Lexie” Incident case provides an insight into the procedural law governing provisional measures under the UN Convention on the Law of the Sea. This article examines the provisional measures prescribed by ITLOS and the Annex VII Arbitral Tribunal in the “Enrica Lexie” Incident case focusing particularly on three issues: (1) the relationship between the request by Italy submitted to ITLOS and that submitted to the Annex VII Arbitral Tribunal, respectively, (2) the existence of the urgency of the situation, and (3) the legal effect of considerations of humanity.
Rosalyn Higgins Dbe Qc
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780198262350
- eISBN:
- 9780191682322
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262350.003.0089
- Subject:
- Law, Public International Law
A state seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reciprocity between ...
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A state seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reciprocity between declarations. There exists the possibility that acts carried out prior to the crucial date ‘nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date’. This latter eventuality is indeed reflected in the International Law Commission’s Draft Article 25 on State Responsibility. It is not the International Court of Justice alone which has had to formulate jurisprudence on the concept of ‘continuing events’: so has the European Court of Human Rights. This chapter offers a commentary on the proceedings instituted by Yugoslavia against Spain and by Serbia and Montenegro against Belgium, Canada, Netherlands, Portugal, and the United Kingdom. The chapter gives an opinion on each of the cases.Less
A state seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reciprocity between declarations. There exists the possibility that acts carried out prior to the crucial date ‘nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date’. This latter eventuality is indeed reflected in the International Law Commission’s Draft Article 25 on State Responsibility. It is not the International Court of Justice alone which has had to formulate jurisprudence on the concept of ‘continuing events’: so has the European Court of Human Rights. This chapter offers a commentary on the proceedings instituted by Yugoslavia against Spain and by Serbia and Montenegro against Belgium, Canada, Netherlands, Portugal, and the United Kingdom. The chapter gives an opinion on each of the cases.
CONSTANZE SCHULTE
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199276721
- eISBN:
- 9780191707667
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276721.003.0006
- Subject:
- Law, Public International Law
This chapter presents some concluding thoughts. The Court's prestige is at an all-time high even if compliance has not always been easy. The relatively positive compliance record for ICJ decisions ...
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This chapter presents some concluding thoughts. The Court's prestige is at an all-time high even if compliance has not always been easy. The relatively positive compliance record for ICJ decisions merits greater recognition and is all the more remarkable in light of the increasing diversity in terms of litigants before the Court.Less
This chapter presents some concluding thoughts. The Court's prestige is at an all-time high even if compliance has not always been easy. The relatively positive compliance record for ICJ decisions merits greater recognition and is all the more remarkable in light of the increasing diversity in terms of litigants before the Court.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0006
- Subject:
- Law, Human Rights and Immigration
The safeguard and preservation of the integrity of international jurisdiction are of the utmost importance for assuring the access of individuals to international justice. In recent years, both the ...
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The safeguard and preservation of the integrity of international jurisdiction are of the utmost importance for assuring the access of individuals to international justice. In recent years, both the European and Inter-American Courts of Human Rights have put limits to State voluntarism and thereby safeguarded the integrity of the respective international mechanisms of human rights protection, duly preserved, to the benefit of the alleged victims.The direct access of individuals to international justice is also manifested in provisional measures of protection, in so far as the preventive dimension is concerned. It further encompasses, in proceedings on contentious cases, the safeguard of the guarantees of the due process of law.Less
The safeguard and preservation of the integrity of international jurisdiction are of the utmost importance for assuring the access of individuals to international justice. In recent years, both the European and Inter-American Courts of Human Rights have put limits to State voluntarism and thereby safeguarded the integrity of the respective international mechanisms of human rights protection, duly preserved, to the benefit of the alleged victims.The direct access of individuals to international justice is also manifested in provisional measures of protection, in so far as the preventive dimension is concerned. It further encompasses, in proceedings on contentious cases, the safeguard of the guarantees of the due process of law.
Rosalyn Higgins Dbe Qc
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780198262350
- eISBN:
- 9780191682322
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262350.003.0113
- Subject:
- Law, Public International Law
This chapter presents a speech delivered to the United Nations General Assembly on the occasion of its examination of the Report of the International Court of Justice (ICJ) for the period August 1, ...
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This chapter presents a speech delivered to the United Nations General Assembly on the occasion of its examination of the Report of the International Court of Justice (ICJ) for the period August 1, 2007 to July 31, 2008. All 192 United Nations Members are ipso facto parties to the Court’s Statute. Of those, sixty-six states have accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. In addition, some 128 multilateral conventions and 166 bilateral conventions envisage that the Court will be resorted to for dispute settlement. This chapter examines the judgments rendered by the Court during the reporting period. It also briefly addresses the order on provisional measures issued previously.Less
This chapter presents a speech delivered to the United Nations General Assembly on the occasion of its examination of the Report of the International Court of Justice (ICJ) for the period August 1, 2007 to July 31, 2008. All 192 United Nations Members are ipso facto parties to the Court’s Statute. Of those, sixty-six states have accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. In addition, some 128 multilateral conventions and 166 bilateral conventions envisage that the Court will be resorted to for dispute settlement. This chapter examines the judgments rendered by the Court during the reporting period. It also briefly addresses the order on provisional measures issued previously.
Elisa Novic
- Published in print:
- 2016
- Published Online:
- December 2016
- ISBN:
- 9780198787167
- eISBN:
- 9780191829253
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198787167.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
Most developments related to the concept of cultural genocide occurred in the field of public international law (international human rights law and international cultural heritage law), thus ...
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Most developments related to the concept of cultural genocide occurred in the field of public international law (international human rights law and international cultural heritage law), thus involving state responsibility. If international law does not recognize state criminal responsibility, states can still be held responsible for the crime of genocide and serious violations of cultural rights. This chapter builds upon this context to inquire whether state responsibility could be articulated in order to cover some specific features of cultural genocide. The current state of international law indicates that its intentional character could be addressed through a principle of aggravated state responsibility. However, international law still seems to lack mechanisms of genocide prevention, in which context attacks against groups’ cultures may stand as an early warning of potential further escalation.Less
Most developments related to the concept of cultural genocide occurred in the field of public international law (international human rights law and international cultural heritage law), thus involving state responsibility. If international law does not recognize state criminal responsibility, states can still be held responsible for the crime of genocide and serious violations of cultural rights. This chapter builds upon this context to inquire whether state responsibility could be articulated in order to cover some specific features of cultural genocide. The current state of international law indicates that its intentional character could be addressed through a principle of aggravated state responsibility. However, international law still seems to lack mechanisms of genocide prevention, in which context attacks against groups’ cultures may stand as an early warning of potential further escalation.
Tullio Treves
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780190072506
- eISBN:
- 9780190072520
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190072506.003.0020
- Subject:
- Law, Public International Law
This Note focuses on the Judgment handed out by a special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in a dispute concerning delimitation of maritime areas between Ghana and ...
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This Note focuses on the Judgment handed out by a special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in a dispute concerning delimitation of maritime areas between Ghana and Cote d’Ivoire. This is the only decision of substance of ITLOS during 2017. Among the elements of particular interests of the Judgment the following should be noted. First, the consideration and rejection of the argument that oil concession practice may constitute a tacit agreement. Second, the reliance, however limited to this case, as regards delimitation of the territorial sea on the same methodology used for the delimitation of the exclusive economic zone and the continental shelf, namely, the equidistance/relevant circumstances methodology. Third, the distinction between the function of the Chamber in delimiting the continental shelf beyond 200 nm and that of the Commission on the Limits of the Continental Shelf in delineating the outer limits of the shelf. Fourth, the examination of the question of whether the Chamber had jurisdiction to decide on questions of responsibility, and of the applicability of customary international law thereto. Fifth, the statement that to adjudicate on the claim that Ghana had contravened the Chamber’s Order on provisional measures belonged to the Chamber’s “inherent competence”. Sixth, the analysis of the regime of contested areas in light of Article 83 of UNCLOS.Less
This Note focuses on the Judgment handed out by a special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in a dispute concerning delimitation of maritime areas between Ghana and Cote d’Ivoire. This is the only decision of substance of ITLOS during 2017. Among the elements of particular interests of the Judgment the following should be noted. First, the consideration and rejection of the argument that oil concession practice may constitute a tacit agreement. Second, the reliance, however limited to this case, as regards delimitation of the territorial sea on the same methodology used for the delimitation of the exclusive economic zone and the continental shelf, namely, the equidistance/relevant circumstances methodology. Third, the distinction between the function of the Chamber in delimiting the continental shelf beyond 200 nm and that of the Commission on the Limits of the Continental Shelf in delineating the outer limits of the shelf. Fourth, the examination of the question of whether the Chamber had jurisdiction to decide on questions of responsibility, and of the applicability of customary international law thereto. Fifth, the statement that to adjudicate on the claim that Ghana had contravened the Chamber’s Order on provisional measures belonged to the Chamber’s “inherent competence”. Sixth, the analysis of the regime of contested areas in light of Article 83 of UNCLOS.