Preliminary Objections in the Bosnia and Herzegovina v Yugoslavia Case
Shreya GUPTA
The present paper seeks to address the issue of the preliminary objections raised in the Bosnia and Herzegovina v. Yugoslavia case. The paper engages in a presentation of the procedural issues raised by the respondent State and the manner in which the ICJ has dealt which each of these contentions. Further, the paper provides a critique of some of the aspects which arise from the Court’s Judgment, as well as the legal implications of its findings.
Admissibility of Claims before the ICJ: “Mootness” and the Nuclear Tests Case
Sandra STOICA
The present paper aims to provide a case analysis of one instance of inadmissibility before the International Court of Justice, illustrated by the Nuclear Tests Case (New Zealand v. France), namely, the so-called “mootness” of a claim. The paper presents a description of the main aspects of the case and the controversies which arise from this Judgment. On the face of it, the case in question is simply an example of what may be construed as an inadmissible claim before the ICJ. However, upon further study, it becomes apparent that, in reaching its decision in this matter, the Court applied its authority of interpretation to an Applicant’s claim quite extensively, essentially determining what the Applicant was effectively seeking, and set the precedent that unilateral public statements made by a State may be considered as legally binding undertakings, based on the principle of good faith. The analysis presented in the present paper seeks to bring to light the implications of the Court’s Judgment in the Nuclear Tests Case.
The Interpretation of “Military Activities”, as an Exception to Jurisdiction: the ITLOS Order of 25 May 2019 in the Case Concerning the Detention of Three Ukrainian Naval Vessels
Ion GÂLEA
The study presents the main elements of the ITLOS Order of 25 May 2019, by which it prescribed provisional measures sought by Ukraine, in relation with the incident that took place in the Kerch Strait on 25 November 2018. The ITLOS ordered Russia to release the three Ukrainian naval vessels and their crewmen, involved in the incident, according to its competence based on article 290 paragraph 5 of UNCLOS, according to which the ITLOS has jurisdiction only for provisional measures, while the principal jurisdiction will belong to an arbitration tribunal formed according to Annex VII of UNCLOS. The main point of interpretation of the Order was represented by the determination of the prima facie jurisdiction, as both Ukraine and the Russian Federation made reservations according to article 298 paragraph 1) b) of UNCLOS, excluding the jurisdiction of the dispute settlement mechanisms with respect to “disputes concerning military activities”. ITLOS interpreted this notion narrowly, concluding that the incident comprised use of force in the context of a law enforcement operation. Thus, the study attempts to examine the interpretative approach of ITLOS towards the notion “military activities”, including from the perspective of the possibility of the situation to be characterized as an “armed conflict”. The general conclusion that the study attempts to propose is that what the ITLOS did was not to increase the “margin” of the “military activities” exception (in order to include what appears to be a “mixed” law enforcement and military activities operation), but to “increase the margin of the determination of the prima facie jurisdiction”.
Tackling Racial Discrimination: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. The United Arab Emirates)
Simona Andra OBROCARU
The present article will be based on the examination and analysis of the racial discrimination issue and it will explain and present aspects that are relevant for the case study (The State of Qatar v. The United Arab Emirates). The purpose of this paper is to shed light on the racial discrimination matter and to reach the core of this problematic by offering a more comprehensive understanding for the situation as a whole. Bearing this in mind, we will also be analysing other similar cases in which common elements can be found: Koptova v. Slovak Republic, Dragan Durmic v. Serbia and Montenegro, Ms. L.R. et al v. Slovak Republic (Dobsina). The paper presents an objective and a realist approach in order to propose a series of solutions for a peaceful and rightful settlement of the conflict between the UAE and Qatar. The conclusions reached by following a thorough analysis can be summarized by stating that racial discrimination should be taken more seriously by the national courts and tribunals, so that it would not be necessary for so many complaints to be addressed international bodies.
Building a Human Rights-Based Climate Claim – Challenges and Approaches
Andreea Teodora CHILAN
Rights-based climate litigation has become more and more common in the recent two decades. However, plaintiffs encounter a multitude of issues in building a successful claim. The present paper aims at providing a critical overview of the most common challenges bringing such a claim entails. It will mainly focus on existing case law for exemplification of how the claims were built in both successful and unsuccessful climate litigations. Standing, causation and the basis of the claim will be assessed in turn in order to provide a way in which such issues are best addressed and handled before a court. While the legal requirements for standing differ from State to State, most of the times it is necessary that causation be thoroughly established. When it comes to the basis of the claim, a breach of the legal obligations assumed by States internationally needs to be interpreted in the light of an infringement of a human right that resulted from that breach. As such, due regard needs to be paid to the establishment of all these requirements when trying to assert a violation of a human right in a climate litigation case.
The Exceptions to Immunity of State Officials from Foreign Criminal Jurisdiction between the Legal Desideratum and Reality of the International Community
Daniela ROȘCA
At its fifty-ninth session, in 2007, the UN International Law Commission (ILC) decided to include the topic “Immunity of State officials from foreign criminal jurisdiction” in its current programme of work. Since then, two Special Rapporteurs have been successively appointed – Mr. Román A. Kolodkin and Mrs. Concepción Escobar Hernández. This paper presents mainly the views related to the exceptions to immunity of State officials from foreign criminal jurisdiction, as they are reflected in the Special Rapporteurs` reports and the work of the Commission.