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Brazil’s foreign policy has traditionally been conducted based on the principle of non-intervention. With the objective of attaining a permanent seat on the Security Council, the country has been demonstrating an effective engagement in peace operations. The principle of non-intervention has given way to that of non-indifference, which represents the first major change in Brazilian diplomacy. A second change stems from Brazil’s proposal of ‘responsibility while protecting’. While this initiative demonstrates the country’s intention to participate actively in the UN, one might ask whether it makes any substantial contribution to the RtoP debate, since several fundamental questions remain unanswered. Is this an attempt to renegotiate and reformulate the concept of RtoP or is it a new a strategy to implement measures based on the RtoP? This article aims to analyse the evolution of the Brazilian view on the RtoP in order to understand its true value.

In: Global Responsibility to Protect

Since its inception, Mercosur has opted for a non-coercive and diplomatic dispute settlement system. State Parties still oscillate between institutionalization based on the European model and the maintenance of an arbitral system for the settlement of disputes. This choice is linked to the possibility and limits of judicial dialogue in Mercosur. In this context, this article aims to analyse the existing horizontal ‘dialogue’ between Mercosur judges and international judges, on the one hand, and the vertical dialogue between Mercosur judges and national judges, on the other hand. In terms of the horizontal ‘dialogue’, the objective is to evaluate the use of precedents and references to other international, regional, and sub-regional Tribunals. As for the supposed vertical ‘dialogue’ between Mercosur judges and national judges, this article analyses the interaction with national courts through the cooperation mechanism established by advisory opinions (which is similar to preliminary rulings under the auspices of the eu), as well as via judicial ‘dialogue’ with representatives of national supreme courts of Mercosur State Parties. The importance of the advisory opinion mechanism is well known, as is the preliminary ruling mechanism in the European Union. Similar to the eu, several important principles of Mercosur law have been laid down by advisory opinions.

In: The Law & Practice of International Courts and Tribunals

Abstract

By adjudicating inter-State claims, international courts can also contribute to the protection and promotion of community interests. However, the main obstacle faced by the International Court of Justice (ICJ) relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. As procedure may guide and shape the application of substantive law, it should itself be interpreted and developed in a manner to ensure community interests. By using its power to “frame rules for carrying out its functions”, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted for multiparty aspects, notably the rules on third-party intervention, with the aim of protecting community interests and enhancing the Court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals.

In: The Law & Practice of International Courts and Tribunals

Abstract

Departing from a contemporary approach to international adjudication, this article aims to evaluate, firstly, the limits of compliance and its residual character when assessing the effectiveness of the International Court of Justice with regards to Latin American states. Secondly, it deals with the importance of going beyond the traditional function of inter-state dispute settlement to assess the contribution of Latin American states to international law through cases submitted to the Court, independently from case-specific compliance. This is because a judgment that has not been complied with may substantially contribute to international law and produce important impacts on domestic authorities. Latin American cases constitute an example of this phenomenon.

In: The Law & Practice of International Courts and Tribunals