Suchergebnisse

Since the decision of the International Court of Justice in LaGrand (Germany v United States of America), the law of provisional measures has expanded dramatically both in terms of the volume of relevant decisions and the complexity of their reasoning. Provisional Measures before International Courts and Tribunals seeks to describe and evaluate this expansion, and to undertake a comparative analysis of provisional measures jurisprudence in a range of significant international courts and tribunals so as to situate interim relief in the wider procedure of those adjudicative bodies. The result is the first comprehensive examination of the law of provisional measures in over a decade, and the first to compare investor-state arbitration jurisprudence with more traditional inter-state courts and tribunals.

Since the decision of the International Court of Justice in LaGrand (Germany v United States of America), the law of provisional measures has expanded dramatically both in terms of the volume of relevant decisions and the complexity of their reasoning. Provisional Measures before International Courts and Tribunals seeks to describe and evaluate this expansion, and to undertake a comparative analysis of provisional measures jurisprudence in a range of significant international courts and tribunals so as to situate interim relief in the wider procedure of those adjudicative bodies. The result is the first comprehensive examination of the law of provisional measures in over a decade, and the first to compare investor-state arbitration jurisprudence with more traditional inter-state courts and tribunals

Abstract
In James Crawford's later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity ('ALRC 24'), which led in due course to the Foreign States Immunities Act 1985 (Cth) ('FSIA') being passed by the Federal Parliament almost unchanged from Commission's suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

In the MV "Norstar" Case (Norstar Case), the International Tribunal for the Law of the Sea (ITLOS) produced two reasoned decisions. In the first, the Tribunal established jurisdiction over the relevant dispute and the admissibility of Panama's claims. In the second, it found that Italy had violated Panama's right to freedom of navigation on the high seas. In the latter decision, the Tribunal relied on an expansive understanding of flag state jurisdiction—prompting a vociferous joint dissent by seven of its twenty-three judges. The majority's understanding of the jurisdictional exclusivity of the flag state as extending to prescriptive as well as enforcement jurisdiction is a significant expansion of flag state rights—and will have a corresponding impact on the way that shipping is regulated internationally.

Article 38(1)(d) of the ICJ Statute provides that "judicial decisions" may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term "judicial decisions" confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission's Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC's assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

"Since the decision of the International Court of Justice in LaGrand (Germany v. United States of America), the law of provisional measures has expanded dramatically both in terms of the volume of relevant decisions and the complexity of their reasoning. Provisional Measures before International Courts and Tribunals seeks to describe and evaluate this expansion, and furthermore to undertake a comparative analysis of provisional measures jurisprudence in a range of significant international courts and tribunals and ad-hoc interstate arbitration tribunals. The result is the first comprehensive examination of the law of provisional measures in ten years, and the first to compare investor-state arbitration jurisprudence with more traditional interstate courts and tribunals"--

December 16, 2015, saw the International Court of Justice (ICJ or the Court) render final judgment in the joined cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (Border Area) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) (Road). Together, these cases represented an opportunity for the Court to advance and clarify its thinking on the role of environmental impact assessments (EIA) in general international law, as first introduced in its decision in Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Pulp Mills), with both Costa Rica (in Border Area) and Nicaragua (in Road) alleging that the other had failed to carry out an EIA with respect to certain, potentially environmentally harmful, activities. They also raised some interesting questions regarding remedies for the breach of provisional measures awarded under Article 41 of the ICJ Statute.

1. Introduction / Eirik Bjorge and Cameron Miles -- 2. The Charming Betsy and The Paquete Habana (1804 and 1900) / William S Dodge -- 3. Mavrommatis Palestine Concessions (Greece v Great Britain) (1924–27) / Michael Waibel -- 4. Factory at Chorzów (Germany v Poland) (1927–28) / Chester Brown -- 5. SS Lotus (France v Turkey) (1927) / Douglas Guilfoyle -- 6. Island of Palmas (Netherlands v United States of America) (1928) / Eirik Bjorge -- 7. Legal Status of Eastern Greenland (Denmark v Norway) (1933) / Rolf Einar Fife -- 8. Trail Smelter (United States of America/Canada) (1938 and 1941) / Duncan French -- 9. Trial Before the International Military Tribunal at Nuremberg (1945–46) / Katherine O'Byrne and Philippe Sands -- 10. The Early United Nations Advisory Opinions (1948–62) / Thomas D Grant and Rowan Nicholson -- 11. The South West Africa Cases (1949 to 1971) / James Crawford and Paul Mertenskötter -- 12. North Sea Continental Shelf (Federal Republic of Germany v Netherlands; Federal Republic of Germany v Denmark) (1969) / Nikiforos Panagis and Antonios Tzanakopoulos -- 13. Barcelona Traction, Light and Power Company (Belgium v Spain) (1970) / Giorgio Gaja -- 14. Tyrer v United Kingdom (1978) / Nigel Rodley -- 15. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (1984 to 1986) / Robert Kolb -- 16. Tadic v Prosecutor (1995) / Sarah MH Nouwen and Michael A Becker -- 17. The Nuclear Weapons Advisory Opinions (1996) / Surabhi Ranganathan -- 18. Gabcíkovo-Nagymaros Project (Hungary/Slovakia) (1997) / Laurence Boisson de Chazournes and Makane Moïse Mbengue -- 19. Vivendi v Argentina (1997–2010) / Sam Luttrell -- 20. US-Import Prohibition of Certain Shrimp and Shrimp Products (1998) / Callum Musto and Catherine Redgwell -- 21. LaGrand (Germany v United States of America) (2001) / Cameron Miles -- 22. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) / John Dugard -- 23. Jurisdictional Immunities of the State (Germany v Italy;Greece intervening) (2012) / Omri Sender and Michael Wood.

On September 18, 2013, several Greenpeace activists, bearing ropes and posters, attempted to board a Gazprom oil platform, the Prirazlomnaya, in the Exclusive Economic Zone (EEZ) of the Russian Federation. They did so in inflatable craft launched from a Greenpeace vessel, the Netherlands-flagged MVArctic Sunrise. They were soon arrested by the Russian Coast Guard. The following day, armed agents of the Russian Federal Security Service boarded theArctic Sunriseitself from a helicopter, arresting those on board. The Netherlands was apparently informed of Russia's intention to board and arrest the vessel shortly after the original boarding of the platform. Over the next four days, the vessel was towed to Murmansk. Russian authorities charged the thirty detained persons (the so-called Arctic 30) with "piracy of an organized group." Although President Vladimir Putin acknowledged that the protesters were "obviously... not pirates," he also noted that "formally, they tried to seize our platform." On October 4, the Netherlands announced that, under Annex VII of the UN Convention on the Law of the Sea (UNCLOS), it had commenced arbitration proceedings against Russia over the detention of theArctic Sunriseand the legality of its seizure. On October 21, the Netherlands filed with the International Tribunal for the Law of the Sea (ITLOS) a request for the prescription of provisional measures pending the constitution of the Annex VII arbitration tribunal.