Max Planck Yearbook of United Nations Law Online最新文献

{"title":"The Application of Teachings by the International Court of Justice, 2016–2022","authors":"Sondre Torp Helmersen","doi":"10.1163/18757413_02601005","DOIUrl":"https://doi.org/10.1163/18757413_02601005","url":null,"abstract":"This article examines the application of teachings by the International Court of Justice between 2016 and 2022. The Court did not cite teachings in its majority opinions during this period. It did cite works from the International Law Commission, which suggests that these are considered different from teachings and possibly have more weight. Judges cited teachings in their individual opinions. Judge Cançado Trindade stands out as a judge with a particularly high citation rate. Teachings played a wide variety of functions in individual opinions, from the classical functions of aiding the interpretation of a treaty and the ascertainment of a rule of customary international law, to a range of other specialized functions such as the interpretation of other texts, in particular judicial decisions, methodological and historical points, and showing the purpose of a rule of instrument, in addition to providing reflections on the role of the international judiciary itself. The article also examines the demographics of the most-cited writers, finding that most of them are men from Western States. The article compares the judges’ practice with findings from prior to 2016 and other international courts and tribunals.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122538256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ILC’s First Reading Draft Articles on ‘Immunity of State Officials from Foreign Criminal Jurisdiction’ (2022)","authors":"M. Wood","doi":"10.1163/18757413_02601009","DOIUrl":"https://doi.org/10.1163/18757413_02601009","url":null,"abstract":"\u0000In August 2022, the International Law Commission adopted, on first reading, a full set of 18 draft articles (with commentaries) on Immunity of State Officials from Foreign Criminal Jurisdiction. The Commission now awaits the written comments of States, and will then have to decide how to proceed with the topic. In detailing the present situation and the work leading up to it, the present article takes the story forward from a contribution to this Yearbook in 2018. After recalling briefly the controversies surrounding the immunities in question, the article begins by describing the working methods of the Commission and the status of its documentation, emphasizing the importance of having a clear understanding of such matters when invoking the Commission’s work. The further work of the Commission on the topic in the years 2019–2022, much of it quite technical, is described, in order to give a full picture. It is then shown that the draft articles on the category of high officials enjoying immunity ratione personae and on possible exceptions to the immunity of State officials ratione materiae remain hotly disputed, both as assertions of existing law or as ‘trends’ or proposals for new law. The article ends by charting a possible course for the Commission’s future work on the topic, suggesting that a radical reappraisal is required if an outcome generally acceptable to States is to be achieved.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128258128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The International Court of Justice and Territorial Disputes: an Updated Systematization","authors":"David Hongler","doi":"10.1163/18757413_02601004","DOIUrl":"https://doi.org/10.1163/18757413_02601004","url":null,"abstract":"\u0000Over the course of the past 75 years, the International Court of Justice (ICJ) has adjudicated a total of 17 territorial disputes, building a considerable body of case law along the way. While the Court has shed light on many legal issues concerning territorial sovereignty over the years, it has never clarified its approach to territorial disputes. Bridging the gap between a 2004 analysis by Brian Sumner, who identified a three-tiered hierarchical decision rule, and modern territorial doctrine, this study aims to provide an updated attempt at systematization of the Court’s approach in its case law concerning territorial disputes. Refining Sumner’s hierarchical decision rule, the findings – while overall congruent with the basic hierarchy identified in his work – suggest that the Court’s approach revolves around a hierarchy of three tiers of territorial titles (understood broadly as sources of the right to territory), namely, legal instruments, State succession and intangibility of boundaries, and independent effectivités. Equity infra legem is used as a last resort tool for interpretation of these titles, where they themselves yield no clear result. Another source of the right to territory, unilateral conduct constituting acquiescence and/or estoppel, is relied on outside of this hierarchy, often to support a decision based on another title. A review of the entirety of the Court’s case law reveals a relatively consistent yet multi-layered approach to territorial disputes.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124315065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Legitimacy of the International Court of Justice from the Vantage Point of UN Members","authors":"Zuzanna Godzimirska","doi":"10.1163/18757413_02601006","DOIUrl":"https://doi.org/10.1163/18757413_02601006","url":null,"abstract":"\u0000Significant scholarly commentary exists on the legal aspects of the relationship between the International Court of Justice and the UN General Assembly. Legal scholars have mused about the role of General Assembly resolutions in the jurisprudence of the Court and dissected the General Assembly’s (mis)use of requests for advisory opinions from the Peace Palace. Yet one essential aspect of the interaction between the two institutions tends to be overlooked. Each fall, UN Members meet in the hall of the General Assembly to offer their comments on the annual Report of the ICJ. The debate constitutes one of few occasions on which UN Members get the opportunity to express views on the Court’s activities and exercise of authority. Taking government statements issued in General Assembly debates over the past thirty years as its point of departure, the article teases out factors that, in the eyes of UN Members, contribute to or detract from the Court’s legitimacy. The article finds that four sets of sources affect UN Members’ assessments of the institution: 1) the Court’s outreach efforts and access to its various outputs, 2) diversity, representativeness, and the quality of its jurisprudence, 3) independence and impartiality of its judges, and 4) its efficiency, flexibility, and transparency. In so doing, the article contributes novel and empirically grounded perspectives to ongoing debates about the legitimacy of the principal judicial organ of the UN from the vantage point of its primary constituents, UN Members.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123418554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice","authors":"Paula Wojcikiewicz Almeida, Giulia Tavares Romay","doi":"10.1163/18757413_02601003","DOIUrl":"https://doi.org/10.1163/18757413_02601003","url":null,"abstract":"\u0000Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132927397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitutional Dimension of the UN Charter Revisited: Almost One Quarter of a Century Later","authors":"Pierre M. Dupuy","doi":"10.1163/18757413_02501006","DOIUrl":"https://doi.org/10.1163/18757413_02501006","url":null,"abstract":"The question of whether the Charter of the United Nations can be considered as the constitution of the international legal order was first examined by the present author here 25 years ago. At that time, it was noted that this issue raises a number of conceptual and theoretical problems that need to be briefly recalled in this paper. 25 years later, however, the question is whether the practical behaviour of States and the actual impact of their references to the Charter as a “constitution” confirm the validity of this thesis, which, it should be noted, originated in doctrine and was first put forward by scholars from federal States, including, in the first instance, Germany and the United States.\u0000 In accordance with the wishes of the editors of this yearbook, the present article was written before the outbreak of Russia’s aggression against Ukraine on 24 February 2022. As a consequence, the examination of State practice both in terms of the authority conferred on the UN Security Council (organic test) and the norms it was able to adopt during that period as well as the way in which the International Court of Justice itself dealt with the Charter (normative test) led to a very nuanced conclusion as to the relevance of the constitutionalist theory in positive law. They also raise the issue of the criteria for appreciating what is a « good theory » one of them being for sure that is should not lead to any kind of dogmatism.\u0000 Whatever the case, the very broad condemnation of the Russian aggression in Ukraine from the outset, notably by the United Nations General Assembly meeting in special session, together with the reactions of several other international bodies as well as heads of State or Governments, make it possible to note that the United Nations Charter is indeed still considered, at least by more than three thirds of the members of the United Nations, as the cornerstone of the international legal order. Does this necessarily mean that this instrument should be qualified as a “constitution” in the technical sense that some domestic public laws and political traditions mean it? The question still deserves to be asked. Here again, it very much remains an issue of definition; but the term is probably less important than the actual reality.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128048908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Mechanisms’ at the United Nations","authors":"Jacob Katz Cogan","doi":"10.1163/18757413_02501024","DOIUrl":"https://doi.org/10.1163/18757413_02501024","url":null,"abstract":"‘Mechanisms’ abound in today’s United Nations. Yet ‘mechanism’s’ ubiquity represents more than the popularity of a word. Its use is broader, employed today not only as a name but also as a category. The term has come to be applied broadly to characterize organizational devices of all types, regardless of the names given to them, that are established and designed to achieve specified goals or to carry out distinct tasks. The proliferation of mechanisms at the United Nations and the trajectory in the development of their functions provide some insight into changes in the way the organization approaches the implementation of its policies.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122908318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wildlife Crime: Story of an International Law Lacuna","authors":"Yann Prisner-Levyne","doi":"10.1163/18757413_02501019","DOIUrl":"https://doi.org/10.1163/18757413_02501019","url":null,"abstract":"Wildlife crime and more precisely the illicit trade of wildlife products is one of the fastest growing international crimes in connection with narcotics trafficking, human trafficking and the small arms trade. Conducted mostly by transnational crime syndicates, wildlife crime is also a source of funding for terrorist groups and armed militias in conflict ridden states contributing to the erosion of the rule of law and environmental degradation which has been expressly acknowledged by the United Nations Security Council (UNSC). Yet, there is no dedicated international law instrument to tackle wildlife crime. Instead, the international community relies on international cooperation and a patchwork of international instruments none of which were originally designed to deal specifically with wildlife crime. Predictably, the current legal framework does not seem to contribute that much to the prevention and eradication of wildlife crime as wildlife populations worldwide keep plummeting. If at the legal level, the adoption of an international agreement to prevent, supress and punish wildlife crime could be a step in the right direction, maybe it is humanity’s relationship with nature which needs to be reassessed especially in the light of the probable zoonotic origin of COVID-19.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"163 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115193775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Digital Humanitarians and International Lawyers: Worlds apart or Two Sides of the Same Coin?","authors":"T. Soave","doi":"10.1163/18757413_02501022","DOIUrl":"https://doi.org/10.1163/18757413_02501022","url":null,"abstract":"The field of humanitarian assistance is undergoing a computational revolution, but international lawyers are slow to realize it. Thanks to the deployment of data analytics, humanitarian agencies are increasingly able to forecast where and when a crisis will strike, whom it will affect, and what needs it will create. These developments enable new and promising models of anticipatory response, but also raise concerns in terms of risk management and irresponsible experimentation. Yet, so far, international lawyers have been strikingly silent about the normative implications of digital humanitarianism. Seeking to fill the gap, this article assesses the impact of data- driven humanitarian response on the practice of international law, and sets out some broad parameters for dialogue and mutual engagement between the two fields of expertise. That engagement requires, first, an understanding of the normative character of humanitarian data practices. Based on that understanding, international lawyers can contribute to the regulation of digital humanitarian networks and help steer the system towards greater accountability.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116529843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The UN’s Work on Racial Discrimination: Achievements and Challenges","authors":"R. Garciandía, P. Webb","doi":"10.1163/18757413_02501020","DOIUrl":"https://doi.org/10.1163/18757413_02501020","url":null,"abstract":"In 1997, the Commission on Human Rights and the United Nations General Assembly decided to convene the third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa. All the major United Nations treaties protecting individuals from racial discrimination had been adopted prior to 1997 and the mandate of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance had been created in 1993. But the Durban Conference, symbolically held in post- apartheid South Africa, generated new momentum for these political and legal commitments against racial discrimination. This chapter presents an overview of the United Nations mechanisms and initiatives tackling racial discrimination and the thematic developments since 1997. In light of contemporary challenges posed by the use of technology and pandemics, and reflecting on the intersectional nature of discrimination, it concludes with reflections on the strengths and weaknesses of the United Nations response to racial discrimination. The chapter identifies areas for further attention, including racial profiling in law enforcement and border security, racism in sport, and the deepening inequalities caused by global emergencies.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133073965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}