This article considers the approach for determining whether a dispute concerns the “interpretation or application” of a particular treaty, such that it is within the subject-matter jurisdiction of an international court or tribunal. Specifically, the article considers what approach should be taken when claims are presented as concerning the “interpretation or application” of a particular treaty, but involve central issues under rules of international law found outside the treaty in question. The specific argument made in this article is that the approach used in some recent decisions, involving characterising where the “relative weight” of a dispute lies and the “true object” of claims, should not be followed.
The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.
With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.
This submission challenges the presumption that uk nationals will lose eu citizenship following Brexit. Until now, the dominant narrative has been drawn from the law on treaties or international organizations, and this article adds the human rights perspective to Brexit. Firstly, eu citizenship can be assimilated to nationality. While eu citizenship is unique, the status protected under international law is a legal bond a person has with a political entity. This protection certainly covers nationality, and this paper argues it can be understood to also protect eu citizenship. Secondly, international law prohibits arbitrary withdrawal of this legal bond with a person. The uk does not have jurisdiction over eu citizenship, so it is doubtful the uk can terminate eu citizenship unilaterally. Even if the eu were to withdraw eu citizenship on its initiative, it would still constitute retroactive law, discrimination, and infringement of sovereignty. It is also disproportionate, because the loss of eu citizenship is not necessary for Brexit. When Greenland withdrew from the eu, its residents retained eu citizenship. For these reasons, the revocation of eu citizenship would be arbitrary. A distinction must be made between the membership of a state in the eu which can be terminated, and the direct legal bond formed between a person and the Union, which is far harder to revoke. On this basis, any uk national who has acquired eu citizenship prior to Brexit, should not be divested of it following Brexit.
Throughout the 20th century, the International Labour Organization (‘ILO’) has played a significant and successful role in the international advancement of social justice. However, in the past 10–15 years the impact of the organization has decreased. Its legislative machinery seems to have come to a standstill. Hardly any influential modern legal instruments have been developed in these years. The ILO’s monitoring system via the Committee of Experts is in danger to be weakened, mainly due to questions from within the organization. The boat that passed by flying the corporate social responsibility (‘CSR’) flag, has been missed. A powerful and unanimous signal, for instance by adopting a Framework Convention on Decent Work, is necessary if the organization is to survive in the 21st century.
In recent years, the un Security Council has repeatedly come under criticism for its inaction in the face of serious violations of international law. As a means to prevent further deadlocks, this article advocates the introduction of a duty to explain votes cast in the Council. In certain situations, such a duty to give reasons already exists today, although it is not implemented. We propose to extend this duty to all votes in the Security Council and to codify it in its Provisional Rules of Procedure. A comprehensive duty to give reasons has three major virtues: it increases the quality of Council decisions, it enhances legal certainty, and it improves the accountability of the Council and of its members. As opposed to structural reforms, our proposal does not necessitate amending the un Charter and thus does not depend on the consent of the Council’s permanent members.
An endless discussion has taken place regarding the role and function of judges ad hoc in contemporary international adjudication. In this regard, doctrine has been important through its ample contribution to the understanding of the institution of the judge ad hoc and its role and function. In fact, from these contributions it is possible to affirm the relevance of the judge ad hoc in contemporary international adjudication. Nonetheless, all these aspects have been analysed having in mind cases where both parties take part in the proceedings. Consequently, a question arises as to what is the role and function of a judge ad hoc when the appointing state fails to defend its case. This article seeks therefore to analyse the role and function of judges ad hoc in cases of partial non-appearance before the International Court of Justice.