Paolo Palchetti

The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute

The article aims at examining, in the light of the practice of the International Court of Justice, some issues concerning the power of the Court to indicate provisional measures to prevent the aggravation or extension of a dispute. While the existence of a power to indicate non-aggravation measures appears to be well established in the Courts case law, the scope of this power has proved to be a more controversial issue. This study argues that, by attaching relevance to the element of aggravation, the Court has been able to indicate measures that are not strictly needed to prevent a risk of irreparable harm but which at any rate contribute to a greater protection of the rights of the parties; at the same time, however, the Court has so far refrained from regarding the risk of aggravation as a circumstance which may justify a less stringent evaluation of the other conditions that normally need to be satisfied for the granting of interim protection under Article 41 of the ICJ Statute.

Applying the Rules of Attribution in Complex Scenarios: The Case of Partnerships among International Organizations

One of the difficulties with partnerships among international organizations concerns the problem of determining the subject who must bear responsibility for a harmful conduct, or for having contributed to the harmful conduct of others. By examining a numbers of issues relating to this problem—such as, for instance, whether, and to what extent, the fact that an organization hosts a partnership has an impact on attribution of conduct—this study aims to assess the potential and limits of the current rules of attribution in dealing with the complex scenarios created by partnerships. It is submitted that, while, no doubt, there are areas in which existing international law does not seem to offer sufficient solutions, on the whole the rules of attribution set forth in the ILC’s texts of 2001 and 2011 appear to provide adequate guidance for solving problems arising in connection to the activities of partnerships.

Litigating Member State Responsibility

It is not rare that, in a dispute brought before an international tribunal against a member State of an organization, that State, by relying on the Monetary Gold principle, asks the tribunal to refrain from exercising its jurisdiction, arguing that this would lead to determining the responsibility of the organization. Such an objection raises the question of whether the Monetary Gold principle, which so far has been applied in cases when the absent third party was a State, also applies to absent organizations. The present article intends to study the question of the applicability of the Monetary Gold principle in relation to situations in which member States can be held responsible for the conduct of the organization. While in principle there are situations in which the determination of the responsibility of the organization appears to be a precondition to the determination of the responsibility of the member State, the fact that an international tribunal does not have jurisdiction over international organizations should lead one to exclude that the Monetary Gold principle applies at all to situations in which the absent third party is an international organization.

Judicial Review of the International Validity of UN Security Council Resolutions by the European Court of Justice

Recent practice shows that domestic courts are increasingly confronted with complaints lodged by individuals or entities affected by measures adopted by the United Nations (UN) Security Council. This chapter aims instead at examining the possible role of the European Union (EU) judge in reviewing the international validity of Security Council resolutions or of EU acts implementing such resolutions. It addresses and critically assesses the European Court of Justice (ECJ)s assertion that it lacks the competence to conduct a review on the basis of international law standard. The chapter examines certain solutions which may help to mitigate some of the inconveniences inherent in the inward looking approach followed by the ECJ in its Kadi judgment, as well as to enhance the role of EU courts in contributing to promote the goals of the international legal order. Keywords:European Court of Justice (ECJ); international law; international legal order; Kadi ; United Nations (UN) Security Council

Can state action on behalf of victims be an alternative to individual access to justice in case of grave breaches of human rights

In judgment No. 238/2014 the Constitutional Court unhesitatingly gave prevalence to the right to jurisdictional protection over compliance with international law. The present paper argues that, at least in its reasoning, the Constitutional Court, instead of targeting exclusively the way in which international law regulates State immunity, should have assessed the possible role of alternative forms of protection of the rights of the victims of Nazi crimes. In particular, the Court should have considered whether negotiation can be an alternative form of protection of the rights of the victims and whether State action at the international level can substitute for individual access to justice. By taking into consideration the role of political organs of the State in the protection of the rights of nationals at the international level, it could have given its contribution to the current trend towards limiting the discretionary nature of diplomatic protection, particularly when grave breaches of human rights are at stake. It would also have contributed to delineate a possible way out of a situation of serious disrespect for international law.

Interpreting “Generic Terms”: Between Respect for the Parties’ Original Intention and the Identification of the Ordinary Meaning

The fact that the parties have used “generic terms” in a treaty is frequently referred to by international tribunals as an element which serves the purpose of establishing whether the parties’ intention allows for a dynamic interpretation of the treaty. This study aims at examining, in the light of the case law of international tribunals, when the use of a certain term can give rise to a presumption that the term must be interpreted in an evolutive manner. It argues that the problem of interpreting generic terms cannot be addressed simply on the basis of one presumption or another but, like any interpretative problem, must be assessed in the light of the means of interpretation set forth in the Vienna Convention.

THE ACTIVITY OF THE INTERNATIONAL COURT OF JUSTICE IN 2011

On 10 November 2011, judges Owada, Tomka and Xue Hanquin were reelected as Members of the Court. On the same day, Giorgio Gaja was elected as a new Member of the Court. judge Gaja is the fourth judge of Italian nationality sitting on the bench of the Court. Before him, the other Italian judges were judge Morelli (1961-1970), judge Ago (1979-1995) and judge Ferrari Bravo (19951997). Under Article 10, paragraph 1, of the Statute of the Court, only “[t]hose candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be considered as elected”. Article 11 then provides that “[i]f, after the first meeting held for the purpose of the election, one or more seats remain to be filled, a second and, if necessary, a third meeting shall take place”. After the election which took place on 10 November 2011, one seat still remained unfilled, as no candidate obtained an absolute majority in both the General Assembly and the Security Council. At a new election on 13 December 2011 julia Sebutinde, of Ugandan nationality, was elected as a Member of the Court. When, on 5 February 2012, she will start her term of office, there will be three women sitting on the bench of the Court, the other two being judge Xue and judge Donoghue.

Armed Attack against the Military Force of an International Organization and Use of Force in Self-Defence by a Troop-Contributing State: A Tentative Legal Assessment of an Unlikely Scenario

If the military force of an international organization is made the object of a military attack by a State, that international organization may be regarded as being entitled to use force in self-defence. However, since the forces of international organizations are generally composed of national contingents which States put at the disposal of the international organizations, the question may be raised as to whether, in case of an armed attack against such forces, the sending State would also be entitled to use force in self-defence to protect its national contingent. This question, which was addressed, albeit in a very cursory manner, in the 2009 Report of the EU Independent International Fact-Finding Mission on the Conflict in Georgia, has to be answered taking into account the status of national contingents as organs of the sending States. By attaching relevance to the contingents dual status and to the rationale underlying the rule on self-defence, this study argues that whenever the national contingent is made the object of an armed attack the possibility for the sending State to invoke self-defence cannot be excluded. In particular, the invocability of self-defence by the sending State should be admitted in those cases in which the armed attack is clearly aimed at targeting that State.

La controversia tra Georgia e Russia davanti alla Corte internazionale di giustizia: l’ordinanza sulle misure provvisorie del 15 ottobre 2008

The conflict between Georgia and Russia before the ICJ: the Order of 15 October 2008 on the request for provisional measures - In its Order of 15 October 2008, rendered in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), the International Court of Justice indicated provisional measures directing both Parties, inter alia, to ensure that no action of racial discrimination be taken against the persons living in the Georgian territory of South Ossetia and Abkhazia. The Court’s Order deals with interesting issues concerning the extraterritorial application of the Convention on Racial Discrimination, the interpretation of the compromissory clause embodied in Article 22 of the Convention and the relationship between human rights law and humanitarian law. The most debated issue, however, revolved around the question as to whether there existed a dispute between the Parties as to the interpretation and application of the Convention. While Georgia may have used its unilateral application for political purposes which are connected to the broader conflict following Russian military intervention of August 2008, it is argued that the Court’s decision on the existence prima facie of a dispute and of its jurisdiction appears to be a sound one.