interests of justice Vienna Convention
155261275
A Vienna Convention Interpretation of the 'Interests of Justice' Provision of the Rome Statute, the Legality of Domestic Amnesty Agreements, the Situation in Northern Uganda: A 'Great Qualitative Step Forward' or a Normative Retreat?
This article examines the interests of justice provision of the Rome Statute of the ICC and asks whether domestic amnesty agreements may thwart the jurisdiction of the ICC through that provision. This question is examined through the lens of the situation in Northern Uganda, and is answered by performing a Vienna Convention interpretation of the provision, as well as by consulting international jurisprudence on the issue, specifically that of the Inter American Court on Human Rights. The article concludes that the interests of justice provision does not allow domestic amnesty agreements to remove cases from the ICC's jurisdiction.
Michael N Kourabas
150528568
Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S. Palestinian Relations
While Palestine considers itself a state, the United States does not currently recognize it as such. The relationship between the two has continued to deteriorate following the December 2017 announcement that the United States would recognize Jerusalem as Israel's capital and move its embassy there. Alleging that the embassy relocation violates international law, Palestine brought a case against the United States in the International Court of Justice (ICJ) in September of 2018. The United States reacted by announcing its withdrawal from the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (Optional Protocol) Also in the fall of 2018, the Trump administration closed the Palestine Liberation Organization (PLO) office in Washington, curtailed its own Palestinian focused mission in Jerusalem, and sharply cut U.S. funding focused on Palestinian interests.
American Journal of International Law
Jean Galbraith
232177598
International Court of Justice Rules in Favor of Germany and Against the United States in the LaGrand Case
In its judgement from June 27, 2001, in the LaGrand Case (Germany v. United States of America) the International Court of Justice made a number of watershed rulings: (a) The Court established that Article 36(1) of the Vienna Convention on Consular Relations creates individual rights for foreign nationals abroad, and not just rights protecting the interests of states that are a party to the Convention; (b) The Court ruled that, beyond the undisputed failure on the part of the U.S. to take the measures required by the Convention, the application of an American provision of criminal procedure in the LaGrand brothers' cases (a provision that prevented the domestic courts from reviewing the implications of the Convention violation admitted by the Americans) itself constituted a violation of Article 36(2) of the Convention; (c) The Court, as a remedy in the case of future violations of the Convention, ordered the United States to provide a procedure for the review and reconsideration of convictions secured in circumstances in which the obligations of the Convention had not been observed; and (d) as a separate matter the Court ruled that its provisional orders, issued pursuant to Article 41 of the Statute of the International Court of Justice, have binding effect.
German Law Journal
157942984
The Principle of Privity
In Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice (PCIJ) said: 'A treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States' This is the classic statement of the privity, pacta tertiis or parties only principle in international law. Accordingly, treaties create (enforceable) obligations and rights only for the States parties to them. The Vienna Convention on the Law of Treaties (VCLT) codified the privity principle in its Articles 34, 35, 36 and 37.As this chapter shows, the PCIJ's axiomatic statement in Certain German Interests almost eighty years ago no longer fully reflects the effect of treaties on third parties in contemporary international law. Since then, the principle of privity of treaty has lost some its sharp edges. The rise of erga omnes obligations and objective, status creating treaties, the conferral of rights on non State actors and their ability to directly enforce such rights as well as the turn towards informal international law beyond the law of treaties have tempered the traditional privity rule. However, it would be premature to sound the death knell of privity of treaty. Privity remains an important structural characteristic on the inter State plane.
Michael Waibel
153170157
Can Customs Rules Solve Difficulties Created by Public International Law? Thoughts on the ECJ's Judgment in Brita Case (C 368/08)
The Brita case decided by the European Court of Justice (ECJ) in early 2010 refers to the application of rules of origin in the EC Israel and EC PLO Association Agreements to territories occupied by Israel in 1967 and held by it since. The decision of the ECJ, based on the general principles of public international law, reflects the European Union's (EU's) policy toward the region but does not contribute to the enhancement of international trade in these areas. This article suggests that alternative, trade oriented legal approaches to this dispute, based on the interpretation of the relevant Association Agreements according to the principles of the Vienna Convention on the Law of Treaties (VCLT) 1969 and on the General Agreement on Tariffs and Trade (GATT) might have better served the trade interests of all the parties involved, in the short term, thus facilitating the enhancement of the peace process in the region in the medium to long term.
Nellie Munin
142770627
The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy
The standard view of the Bush Administration's relationship to international law is something like this: The Administration did not take international law seriously and routinely disregarded it whenever it was thought to conflict with the national interests of the country. In doing so, the Administration substantially undermined both the rule of law and the United States' standing in the international community. Consequently, one of the priorities of the Obama Administration should be to recommit the United States to compliance with international law and its institutions. In support of this view, critics of the Bush Administration invoke a variety of examples. First, the Administration withdrew from two treaties the Anti Ballistic Missile Treaty with Russia, and the Optional Protocol to the Vienna Convention on Consular Relations, which gave the International Court of Justice in The Hague jurisdiction over certain disputes relating to the arrest of foreign nationals in the United States. Second, the Administration allegedly took the unprecedented step of "unsigning" the treaty establishing the International Criminal Court. Third, the Administration concluded that it would not apply the protections of the Geneva Conventions to terrorist detainees, including the detainees held at the Guantanamo Bay naval base in Cuba. Fourth, the Administration announced a military preemption doctrine, a doctrine that many international lawyers think exceeds the international law right of self defense. Fifth,
Curtis A Bradley
152191912
'Interests of justice' Defining the scope of Prosecutorial discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court
The International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the 'interests of justice' Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible 'interests of justice' while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP) as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.
Talita de Souza Dias
152343310
Suppression of Evidence as a Remedy for Failure to Inform Under Article 36 of the Vienna Convention on Consular Relations? (Verwertungsverbot bei Verletzung der Pflicht zur Belehrung Nach Art. 36 WUK? (in German)
The paper comments on a decision of the German Federal Constitutional Court of 8 July 2010 (BvR 2485/07) and suggests considering, in criminal procedures, the remedy of suppression of statements which an arrested foreign national made without having been informed by police officers of his right to consular notification and communication under Article 36 of the Vienna Convention of Consular Relations (VCCR) In the recent decision, the German Federal Constitutional Court, firstly, reminded all German courts of their constitution based obligation to take into account international law, including the decisions of the International Court of Justice. But, given the complexity of the interaction between international law and domestic law, the Constitutional Court will only check whether the lower courts have "manifestly received international law erroneously." Secondly, the Constitutional Court criticised the criminal courts for reacting to a violation of article 36 cl. 1 lit. b) VCCR during a criminal procedure only by reducing the sentence of the convicted. Third, the Court recommended that the criminal courts reconsider the possibility of a suppression of evidence. The paper welcomes that suggestion. It briefly revisits the international case law establishing that the VCCR grants individual rights, which must be rendered effective by the domestic authorities, and which have been considered by German courts as self executory in the domestic legal order. The paper also mentions the case law in various jurisdictions where courts have accepted the remedy of suppression of evidence. Others, notably the US Supreme Court, have rejected such a remedy. The paper shows how the suppression of evidence can be fitted into German criminal procedure. The current German judge made doctrine on exclusion of evidence basically allows for suppression of evidence only when, upon balance, fundamental rights of the accused have been seriously affected, and when this outweighs the countervailing public interest in effectively running the criminal procedure and in full fact finding. It is submitted that this approach must be modified in cases with an international dimension, when foreign states' interests or individual international rights of the accused are at stake. In such an internationalised constellation, these interests and rights must be specifically taken into account, and must be accorded high weight in the balancing process. Otherwise, the exclusion of evidence will de facto never happen in German criminal procedure, and the individual right of the accused under Article 36 VCCR will remain empty.
Sabine Gless Anne Peters
152452734
"Respectful Consideration" after Sanchez Llamas v. Oregon Why the Supreme Court Owes More to the International Court of Justice
INTRODUCTION 244 R I. INTERNATIONAL LAW IN U.S. COURTS AND IN THE INTERNATIONAL COURT OF JUSTICE 247 R A. Treaties in U.S. Courts 247 R B. Citation to Foreign Precedent in U.S. Courts 248 R C. The International Court of Justice 249 R II. THE VIENNA CONVENTION IN DOMESTIC AND INTERNATIONAL COURTS 250 R A. History of the Vienna Convention on Consular Relations 250 R B. The Vienna Convention in Modern Case Law. 252 R III. SANCHEZ LLAMAS V. OREGON 255 R A. Background Facts and Procedural History 255 R B. The Majority Opinion 256 R C. Justice Breyer's Dissenting Opinion 260 R 1. Individual Rights Under Article 36 260 R 2. Procedural Default Rules and "Respectful Consideration" 261 R 3. Suppression of the Evidence 263 R IV. EVALUATING SANCHEZ LLAMAS V. OREGON 264 R A. The Function of "Respectful Consideration" in Breard and Sanchez Llamas 265 R B. Why the Supreme Court Owes More to the International Court of Justice 266 R 1. Uniformity of Interpretation 268 R 2. The Structure of the International Court of Justice 269 R 3. The Diplomatic Interests of the United States 270 R
Steven Arrigg Koh
150853997
The International Court of Justice at 60: Performance and Prospects
The roundtable was convened at 9:00 a.m. Saturday, April 1, by its chair, Stephen Mathias of the Multinational Force and Observers, who introduced the commentator, Bruno Simma of the International Court of Justice, and the participants: Daniel Bethlehem of the Foreign and Commonwealth Office, United Kingdom; Vera Gowlland Debbas of the Graduate Institute of International Studies; and William Howard Taft IV of Fried Frank Harris Shriver Jacobson LLP INTRODUCTORY REMARKS BY STEPHEN MATHIAS [dagger] Prefacing the remarks of the participants, Mr. Mathias declared that, in view of the centennial conference's theme of "A Just World Under Law," it was appropriate to consider the role and performance of the International Court of Justice (the Court) The creation of the International Court of Justice and its predecessor institution, the Permanent Court of International Justice, were among the most hopeful and ambitious steps taken during the past one hundred years to achieve the goal of a world under law. Mr. Mathias stated that an initial question about the role of any court concerns the cases that come before it. In its contentious jurisdiction, the Court can hear only the cases that states agree to bring before it, but those cases may be, and frequently are, cases that touch fundamental interests of states, including boundary disputes and use of force, in its advisory jurisdiction, the Court can issue advisory opinions in matters referred by certain UN organs, as was done in the matter concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall opinion) Setting the stage for an analysis of the Court's contentious jurisdiction, Mr. Mathias queried whether the Court was really the venue of choice for significant cases. Do states and relevant international political bodies refer significant disputes and legal questions to the Court? Mr. Mathias explained that this question has two aspects: (1) whether significant disputes are referred to dispute settlement at all; and (2) if they are, whether the Court is the forum of choice. He then posed the related question of whether there were any steps that could or should be taken to make the Court a more attractive forum for litigants. Probing further into the Court's advisory' jurisdiction and laying the foundation for discussion by the participants, Mr. Mathias challenged the audience to consider whether the referral of what some view as essentially political disputes, such as the Israeli separation barrier matter, runs the risk of politicizing the Court. He suggested that another means of analyzing the performance and prospects for the Court would be to consider the effects of its judgments and advisory opinions. Do states comply with the judgments directed at them? Are the legal principles set forth in such judgments regarded as declaratory of international law? Do advisory opinions have influence in the resolution of matters they address? To begin to answer these important questions, Mr. Mathias recommended a study of the Court's jurisprudence. He noted that, even limiting consideration to the past decade, the Court has issued judgments and advisory opinions on fundamental issues of great general significance, including the nature of the fight of self defense, the legality of the threat or use of nuclear weapons, and head of slate immunity under customary international law. The Court has also decided cases that may not be of the same general interest but are of great importance to the litigants, such as the boundary and Vienna Convention cases. Mr. Mathias noted that yet another means of analyzing the Court's performance and prospects is to analyze the procedure and reasoning behind the Court's judgments. Is it true, as one judge of the Court recently noted, that the Court occasionally reaches a particular conclusion "ex cathedra, and without giving much substantive reasoning"
William Howard Taft Vera Gowlland-Debbas Daniel Bethlehem Bruno Simma