Martin Scheinin

The ICJ and the Individual

Procedurally, individuals do not have access to the Court, or standing before the ICJ. Pursuant to the relevant articles 34.1 and 65 of the ICJ Statute individuals cannot be parties in contentious cases or in advisory opinions respectively. Individuals can be heard as witnesses and experts but this does not transform the persons in question to parties. However the individual is not completely ignored by the ICJ. On the contrary, the rights of the individuals are a core element of the legal reasoning in several decisions of the Court. These rights can be dwelt upon through an examination of the relevant human rights and humanitarian law sources. Rough this approach the court can take the individual in consideration either in an abstract fashion or in a more clearly defined way. Findings of violations in abstracto without reference to named individuals were made in the Democratic Republic of Congo v. Uganda Case, and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion. On the other hand, the Court may identify violations that affect clearly identified individuals, as was the case in the Breard, LaGrand and Avena cases. In some of these cases not only was a violation found but the Court went even further by addressing the issue of reparation owed. It is, consequently, evident that through the examination of human rights and humanitarian law sources and the decisions of the relevant human rights bodies the individual, although not a direct party to the dispute may, nevertheless, constitute a source of inspiration for the legal thought-processes of the Court.

Judges as guardians of constitutionalism and human rights

The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.

The judiciary in times of terrorism and surveillance: a global perspective

The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.

Defining Acts of International Terrorism in Time of Armed Conflict: A critical comment on Italian case law

Symposium: International Law in Italian Courts: Ten Years of Jurisprudence: International Terrorism: Comment

Reservations by States under the International Covenant on Civil and Political Rights and Its Optional Protocols, and the Practice of the Human Rights Committee

In 1994 the Human Rights Committee, the treaty body acting under the International Covenant on Civil and Political Rights (ICCPR),106 adopted its General Comment No. 24 (52)107 on issues related to reservations made to the Covenant or its two Optional Protocols.108 The General Comment did not break new ground as to the regime on reservations under human rights treaties but it certainly made explicit some of the tensions that existed between the Vienna Convention on the Law of Treaties (Vienna Convention)109 and the approach taken to reservations under human rights treaties. The General Comment triggered off critical comments by certain States,110 and still after ten years it still remains an important background factor for the ongoing work of the International Law Commission (ILC) under the theme of reservations to multilateral treaties.111