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The view of the past in international humanitarian law (1860–2020)
- Antoon De Baets
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- Journal:
- International Review of the Red Cross / Volume 104 / Issue 920-921 / August 2022
- Published online by Cambridge University Press:
- 04 July 2022, pp. 1586-1620
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This essay explores how the drafters of international humanitarian law (IHL) incorporated the past into their work between 1860 and 2020, and how they approached time, memory and history as indicators for this view of the past. Its sources consist of the complete series of general conventional and customary IHL instruments as well as the leading commentaries on them. For the IHL view of time, the impact of legal principles on the perception of time is scrutinized. Balancing nonretroactivity against customary international law and the humanity principle broadens the temporal scope towards the past, while balancing legal forgetting against imprescriptibility and State succession broadens it towards the future. For the IHL view of memory, dead persons and cultural heritage are seen as crucial vectors. Attention to the fate of the dead has been a constant hallmark of IHL, while care for cultural heritage has an even longer pedigree. For the IHL view of history, the essay highlights that the International Committee of the Red Cross has consistently advocated State duties to the war dead and has organized an archival infrastructure to satisfy the need – later converted into a right – of families and society to search for the historical truth about them.
Furthermore, the responses of IHL drafters to five major historical challenges are examined. First, while in the realm of war crimes impunity prevailed for most of history, after World War II a system of war crimes trials was mounted, culminating in the International Criminal Court. Second, soul-searching about the atrocities of World War II, including the Holocaust, helped create Geneva Convention IV of 1949, which protects civilians in wartime. Third, the human rights idea was not fully embraced by IHL treaty drafters until 1968. Fourth, the IHL approach to civil wars was slow and incomplete, but its appearance in 1949 and coming of age in 1977 were breakthroughs nevertheless. Fifth, colonial conflicts were not recognized as international wars in 1949, when this could have had considerable impact, but only in 1977, when decolonization was largely over. In all cases, the responses to these historical challenges came after long delays. Clearly, the IHL view of the past has to be assessed on a transgenerational scale.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)
- International Court of Justice. 18 November 2008 3 February 2015
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- Journal:
- International Law Reports / Volume 198 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 1-838
- Print publication:
- 2022
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Human rights — Genocide — Definition of genocide — Convention for the Prevention and Punishment of the Crime of Genocide, 1948 — Actus reus of genocide — Mens rea — Specific intent to destroy protected group — Dolus specialis — Proof — Whether existence of intent can be inferred from pattern of conduct — Relationship between genocide and other violations of humanitarian law and human rights — Ethnic cleansing — Responsibility for genocide — Whether genocide established in principal claim — Whether genocide established in counter-claim — Armed conflict in territory of Croatia in 1991-95 — Whether breaches of Genocide Convention
International Court of Justice — Jurisdiction — Scope — Consent to jurisdiction — Basis for jurisdiction — Article IX of Genocide Convention — Court confined to disputes regarding genocide — Whether dispute between Parties falling within Article IX of Genocide Convention — Respondent raising preliminary objections relating to jurisdiction of Court and admissibility of Application — Whether Court having jurisdiction to entertain Croatia’s Application
International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent’s first preliminary objection — Capacity to participate in proceedings before Court — Articles 34 and 35 of Statute of Court — Whether Parties satisfying general conditions — Whether Respondent having access to Court on basis of Article 35(1) of Statute — Admission to United Nations on 1 November 2000 — Whether Respondent acquiring status of party to Statute of Court on 1 November 2000 — Whether Court “open” to Respondent — Issues of jurisdiction ratione materiae — Declaration and Note of 27 April 1992 — Nature and effect on position of the Federal Republic of Yugoslavia in relation to Genocide Convention — Whether declaration having effect of notification of succession to treaties — Whether Respondent party to Genocide Convention, including Article IX, at date of institution of proceedings until at least 1 November 2000 — Whether Court having jurisdiction to entertain Croatia’s Application
International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent’s second preliminary objection — Issues of jurisdiction ratione temporis — Whether claims based on acts and omissions which took place prior to 27 April 1992 beyond jurisdiction of Court and inadmissible — Distinction between objection to jurisdiction and objection to admissibility — Whether second preliminary objection possessing an exclusive preliminary character — Whether possible to determine questions raised by objection without determining issues properly pertaining to merits — Whether Court having jurisdiction to entertain Croatia’s Application
International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent’s third preliminary objection — Whether claims referring to submission of persons to trial within jurisdiction of Court — Whether claims concerning provision of information on missing Croatian citizens within jurisdiction of Court — Whether claims concerning return of cultural property within jurisdiction of Court — Whether Court having jurisdiction to entertain Croatia’s Application
International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Issues of jurisdiction and admissibility to be determined at merits stage — Issues of jurisdiction ratione temporis — Whether Court’s jurisdiction extending to acts prior to 27 April 1992 — Whether provisions of Genocide Convention retroactive — Logic — Article 28 of Vienna Convention on the Law of Treaties, 1969 — Whether acts said to have occurred before 27 April 1992 falling within scope of jurisdiction under Article IX due to Article 10(2) of International Law Commission’s Articles on State Responsibility — Whether acts said to have occurred before 27 April 1992 falling within scope of jurisdiction under Article IX due to law of State succession — Whether Respondent bound by obligations under Genocide Convention — Whether Court having jurisdiction to entertain Croatia’s Application with respect to acts prior to 27 April 1992
State succession — Socialist Federal Republic of Yugoslavia — Dissolution — Republics becoming independent States — Distinction between successor State and continuing State — Federal Republic of Yugoslavia claiming to be continuation of the Socialist Federal Republic of Yugoslavia — Serbia and Montenegro — Republic of Serbia — Consent to jurisdiction of International Court of Justice — Whether Serbia sole Respondent — Treaty commitments — Genocide Convention — Whether Federal Republic of Yugoslavia party by succession to Genocide Convention — Membership of United Nations — Status and position of Respondent State in relation to the Statute of the International Court of Justice and to Genocide Convention
Treaties — Accession — Parties — Signature — Ratification — Genocide Convention — Process by which State becoming bound by treaty as successor State or remaining bound by treaty as continuing State — Signature of Genocide Convention by the Socialist Federal Republic of Yugoslavia on 11 December 1948 — Socialist Federal Republic of Yugoslavia depositing instruments of ratification, without reservation, on 29 August 1950 — Whether the Federal Republic of Yugoslavia party by succession to Genocide Convention from beginning of its existence as a State — Declaration and Note of 27 April 1992 — Nature and effect on position of the Federal Republic of Yugoslavia in relation to Genocide Convention — Whether Serbia party to Convention at date of Application on 2 July 1999
Treaties — Interpretation — Application — Genocide Convention — Applicable law — Article II of Genocide Convention — Constituent elements of genocide — Actus reus and mens rea of genocide — Dolus specialis — Requirement of specific intent to destroy group in whole or part — Evidence — Mens rea of genocide — Meaning and scope of destruction of group — Destruction of group in part — Evidence of dolus specialis — Actus reus of genocide — Relationship between Genocide Convention and international humanitarian law — Meaning and scope of physical acts — Whether genocide established in principal claim — Whether alleged acts established — Whether falling into categories listed in Article II of Genocide Convention — Whether committed with intent to destroy protected group, in whole or in part — Quantitative element — Geographic location — Pattern of conduct — Whether genocide established in counter-claim — Whether breaches of Genocide Convention
International criminal law — Genocide — Definition of genocide — Obligations under Genocide Convention — Role of International Criminal Tribunal for the former Yugoslavia — Proof of genocide
Evidence before international courts and tribunals — Evidence — Burden of proof — Standard of proof — Methods of proof — Relevance of findings by International Criminal Tribunal for the Former Yugoslavia — Whether conclusive evidence crimes committed — Whether conclusive evidence regarding attribution of acts
State responsibility — Attribution — Responsibility of State for acts of State organs — Engagement of international responsibility of acts unlawful even if author of acts acting contrary to instructions or exceeding authority — International Law Commission’s Articles on State Responsibility 2001 — Relevance — Determination of responsibility of State if genocide established — Whether genocide established — Whether breaches of Genocide Convention
War and armed conflict — Armed conflict in territory of Croatia as it had existed within the Socialist Federal Republic of Yugoslavia in 1991-95 — Allegations of acts of genocide — Whether breaches of Genocide Convention
Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic
- Edited by Christopher Greenwood
- Karen Lee, University of Cambridge
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- Book:
- International Law Reports
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- 03 October 2019, pp 415-472
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The Institute of International Law's Resolution on State Succession and State Responsibility
- Introduction, Text and Commentaries
- Marcelo G. Kohen, Patrick Dumberry
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- Published online:
- 16 January 2019
- Print publication:
- 14 February 2019
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Marcelo Kohen and Patrick Dumberry explore in an article-by-article commentary the Resolution adopted in 2015 by the Institute of International Law, on state succession in matters of state responsibility. They analyse the content and scope of application of each provision based on a comprehensive survey of existing state practice and judicial decisions (both domestic and international), as well as taking into account the works of scholars and that of the ILC Special Rapporteur in his proposed Draft Articles on the same topic. This book explains the rationale and the reasons behind why the Institute adopted specific solutions to address particular problems of succession to responsibility for each provision, including the need to achieve a fair outcome given the specific circumstances and relevant factors for each case.
Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic
- Singapore. 29 September 2016
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- Journal:
- International Law Reports / Volume 183 / 2019
- Published online by Cambridge University Press:
- 01 January 2021, pp. 415-472
- Print publication:
- 2019
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State succession — Treaties — Joint Declaration of Government of the People’s Republic of China and Government of the Portuguese Republic on question of Macau, 1987 — People’s Republic of China (“PRC”) assuming sovereignty over Macau from 20 December 1999 — Application of PRC’s treaties to Macau after assumption of sovereignty — Rights of third parties
Treaties — Interpretation — Application — Agreement between Government of the People’s Republic of China and Government of the Lao People’s Democratic Republic concerning the encouragement and reciprocal protection of investments, 1993 (“the PRC–Laos BIT”) — Whether PRC–Laos BIT applying to Macau — “Moving treaty frontier” rule — Vienna Convention on the Succession of States in respect of Treaties, 1978, Article 15 — Vienna Convention on the Law of Treaties, 1969, Article 29 — Exceptions — Whether a different intention appearing from treaty — Whether otherwise established that treaty was not meant to apply to Macau — Applicable standard of proof to be met under international law — Applicability of critical date doctrine to court’s assessment of evidence
Arbitration — Jurisdiction — Whether arbitral tribunal possessing jurisdiction to hear claims — Whether protection of PRC–Laos BIT extending to Macanese investors — Whether subject matter of claim falling within scope of dispute resolution clause in Article 8(3) of PRC–Laos BIT — Jurisdiction — Whether interpretation and application of PRC–Laos BIT justiciable before Singaporean courts — Jurisdiction — Standard of review — Whether Singaporean courts obliged to accord special deference to tribunal’s findings
Economics, trade and finance — Bilateral investment treaties — PRC–Laos BIT — People’s Republic of China assuming sovereignty over Macau from 20 December 1999 — Whether PRC–Laos BIT applying to Macau — Whether protection of PRC–Laos BIT extending to Macanese investors — Whether interpretation and application of PRC–Laos BIT justiciable before Singaporean courts — The law of Singapore
Regina (Keyu) and Others v. Secretary of State for Foreign and Commonwealth Affairs and Another
- United Kingdom, England. 25 November 2015
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- Journal:
- International Law Reports / Volume 182 / 2019
- Published online by Cambridge University Press:
- 01 January 2021, pp. 555-657
- Print publication:
- 2019
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Relationship of international law and municipal law — Treaties — Effect in municipal law — European Convention on Human Rights, 1950 — Article 2 of Convention — Human Rights Act 1998 incorporating Convention — General principle of non-retrospectivity of Convention — Whether Convention binding Contracting Party in relation to act taking place before entry into force of Convention for that Party — Critical date — Whether State having duty to investigate a suspicious death occurring before critical date — Whether two requirements satisfied — Whether relevant acts or omissions after critical date — Whether genuine connection between death and critical date — Whether ten-year threshold exceeded — Whether critical date when United Kingdom recognizing right to petition or when Convention entering into force — Whether underpinning of underlying values of Convention necessary — Article 1 of Convention — Whether United Kingdom failing to secure to everyone within its jurisdiction right to life — Whether appellants having right to public inquiry under Article 2 of Convention
Treaties — Application — Human rights treaties — European Convention on Human Rights, 1950 — Article 2 of Convention — General principle of non-retroactivity — Whether Convention binding Contracting Party in relation to act taking place before entry into force of Convention for that Party — Critical date — Whether State having duty to investigate a suspicious death occurring before critical date — Convention values — Whether underpinning of underlying values of Convention necessary — Whether appellants having right to public inquiry under Article 2 of Convention
Relationship of international law and municipal law — Customary international law — Whether international law requiring inquiry into killings by 1948 — Whether United Kingdom having obligation to investigate killings — Whether any principle could be recognized by common law — Whether appellants having right to public inquiry under common law by virtue of incorporated principles of customary international law — Whether decisions reached by respondents rational and proportionate — Whether appellants having right to public inquiry under common law by virtue of judicial review
Human rights — Human rights treaties — Nature and scope — European Convention on Human Rights, 1950 — Article 1 — Duty of Contracting Parties to secure rights and freedoms under Convention to persons within their jurisdiction — Killings by British Army in State of Selangor in 1948 — Whether within jurisdiction of United Kingdom — Whether United Kingdom responsible for deaths — Whether United Kingdom responsible for holding inquiry into deaths — Whether United Kingdom failing to secure to everyone within its jurisdiction right to life — Whether appellants having right to public inquiry under Article 2 of Convention
Jurisdiction — Territory — State of Selangor — Former British Protected State in Federation of Malaya — Killings by British Army in Selangor in 1948 — Federation of Malaya becoming independent in 1957 — European Convention on Human Rights, 1950 — Securing of rights and freedoms within United Kingdom jurisdiction — Whether deaths occurring in circumstances within jurisdiction of United Kingdom within meaning of Article 1 of Convention — Temporal jurisdiction — Whether deaths occurring within jurisdiction if Convention had been in force in Malaya in 1948 — Whether time between deaths and extension of Convention to Malayan Federation less than ten years — Whether Strasbourg test satisfied — Whether United Kingdom responsible for deaths in 1948 — Constitutional arrangements between United Kingdom and Federation of Malaya in 1957 — Whether affecting any domestic law duty — Whether United Kingdom exercising control over persons who died — Whether conduct of British Army within United Kingdom jurisdiction — Whether United Kingdom responsible for holding inquiry into deaths — Whether any jurisdictional obstacle to ordering an inquiry into killings
State succession — State of Selangor — Former British Protected State in Federation of Malaya — Killings by British Army in Selangor in 1948 — Federation of Malaya becoming independent in 1957 — Constitution of Federation of Malaya providing for rights, liabilities and obligations to pass from United Kingdom to Federation — Alleged misconduct by British Army — State liability for deaths — Whether remaining with State responsible for deaths or passing to successor State — Whether different constitutional arrangements between United Kingdom and Federation of Malaya affecting rights of victims against United Kingdom — Whether domestic rights arising from European Convention on Human Rights, 1950, international law or common law principles — Whether United Kingdom responsible for deaths — Whether United Kingdom having duty to hold inquiry into deaths
State responsibility — State of Selangor — Former British Protected State in Federation of Malaya — Killings by British Army in Selangor in 1948 — Federation of Malaya becoming independent in 1957 — Constitution of Federation of Malaya providing for rights, liabilities and obligations to pass from United Kingdom to Federation — Alleged misconduct by British Army — State liability for deaths — Whether remaining with State responsible for deaths or passing to successor State — Whether different constitutional arrangements between United Kingdom and Federation of Malaya affecting rights of victims against United Kingdom — Whether domestic rights arising from European Convention on Human Rights, 1950, international law or common law principles — Whether United Kingdom responsible for deaths — Whether United Kingdom having duty to hold inquiry into deaths
Human rights — Right to life — Article 2 of European Convention on Human Rights, 1950 — Duty to investigate suspicious deaths — Separate and autonomous duty — Jurisprudence of European Court of Human Rights — Šilih — Janowiec — Convention not binding Contracting Party in relation to act taking place before date of entry into force of Convention with respect to that party — Critical date — Non-retrospectivity of Convention — Whether State having duty to investigate suspicious death occurring before critical date — Temporal jurisdiction — Genuine connection — Convention values — Whether United Kingdom having duty to hold inquiry into deaths
War and armed conflict — Killings by British Army in State of Selangor in Federation of Malaya in 1948 — State of emergency in Malaya — Federation of Malaya former British Protected State — Federation of Malaya becoming independent in 1957 — Whether United Kingdom responsible for deaths — Whether United Kingdom having duty to hold inquiry into deaths — The law of the United Kingdom
In the Matter of an Arbitration under the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, Signed on 4 November 2009
- Arbitration Tribunal. 30 June 2016 29 June 2017
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- Journal:
- International Law Reports / Volume 179 / 2019
- Published online by Cambridge University Press:
- 01 January 2021, pp. 1-456
- Print publication:
- 2019
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Arbitration — Arbitration tribunal — Members of tribunal — Requirement of impartiality and independence — Whether ex parte communications between arbitrator and party agent violating arbitration agreement
Arbitration — Jurisdiction — Competence of arbitration tribunal to rule on objections to jurisdiction — Whether breach of arbitration agreement ground to terminate agreement — Definition of material breach — Vienna Convention on the Law of Treaties, 1969 — Whether attempt to terminate the treaty for material breach depriving arbitration tribunal of jurisdiction — Article 65 — Whether conduct in breach of arbitration agreement repudiating or frustrating object or purpose of arbitration agreement — Whether measures taken by arbitration tribunal ensuring procedural fairness
General principles of international law — Compétence de la compétence — Challenges to jurisdiction of arbitration tribunal — Whether tribunal having power to decide on challenges to its own jurisdiction — Jurisdiction of arbitration tribunal to rule on validity of termination of arbitration agreement
Sea — Law of the sea — Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 — Status of bay as internal waters — Definition of “closing line” of a juridical bay — Article 7 — No requirement to publish chart indicating closing line or to give publicity to baselines
Sea — Law of the sea — United Nations Convention on the Law of the Sea, 1982 — Delimitation of territorial sea — Article 15 — Equidistance line subject to special circumstances — Whether difference in lengths of coastal fronts or whether coastal configuration exacerbating “boxed-in condition” special circumstance requiring adjustment of equidistance line
Sea — Maritime boundaries — Delimitation — Dispute settlement — Arbitration agreement — Use of word “junction” — Ordinary meaning of word — Regime to ensure unimpeded access between Slovenia’s territorial sea and the high seas or exclusive economic zones of other States in accordance with international law, equity and principle of good neighbourly relations — Freedom of movement within “junction area” not subject to requirements applicable to innocent passage or transit passage — No right of Slovenia to exploit living or non-living marine resources within junction area — Requirement that parties exercise rights and obligations within junction area in good faith and in accordance with duty of cooperation
State responsibility — Ex parte communication between arbitrator and party agent — Breach of arbitration agreement — Whether conduct of party agent attributable to State
State succession — Law of the sea — Whether internal waters of a single State retaining that status upon dissolution of that State
Territory — Determination of land boundary — Uti possidetis — Whether internal boundaries prior to independence constituting present-day land boundary between the parties — Presumption that aligned cadastral limits from pre-independence period constituting present-day land boundary — Whether other formal evidence of title establishing boundary if cadastral limits disputed or not aligned — Whether effectivités sufficient to override evidence of aligned cadastral limits or other formal evidence of title — Reliance on effectivités only in absence of other pre-independence evidence — Whether preferences of local population relevant to determination of land boundary
Territory — Internal waters — Delimitation of juridical bay — Application of uti possidetis principle — No formal division of bay prior to independence of the parties — Delimitation of bay subject to evidence of effectivités — Whether special regime for usage of bay required
Treaties — Vienna Convention on the Law of Treaties, 1969 — Notice of termination of a treaty — Articles 60 and 65 — Requirement of material breach — Whether breach constituting repudiation of a treaty or frustrating its object and purpose
Yugoslavian Airstrike Immunity Case
- Austria. 11 April 1995
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- Journal:
- International Law Reports / Volume 176 / 2018
- Published online by Cambridge University Press:
- 01 January 2021, pp. 434-436
- Print publication:
- 2018
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State immunity — Jurisdictional immunity — Distinction between acta jure imperii and acta jure gestionis — Deployment of air force as a sovereign act — Whether plaintiff barred from suing respondent State in Austria for damages caused by an airstrike
State succession — State succession in court proceedings — Whether Federal Republic of Yugoslavia remaining defendant in civil case brought against Socialist Federal Republic of Yugoslavia — The law of Austria
Andrejeva v. Latvia
- European Court of Human Rights. 18 February 2009
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- Journal:
- International Law Reports / Volume 176 / 2018
- Published online by Cambridge University Press:
- 01 January 2021, pp. 267-334
- Print publication:
- 2018
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Human rights — Property rights — Pecuniary rights — State pension system — Prohibition of discrimination — Applicant employed prior to 1991 in territory of former Union of Soviet Socialist Republics — Latvian State Pensions Act providing for pension entitlement for this period to Latvian citizens regardless of contributions — Applicant not eligible as non-citizen of Latvia — Whether discriminatory — Whether Republic of Latvia violating Article 14 of European Convention on Human Rights, 1950, taken together with Article 1 of Protocol No 1
Human rights — Right to a fair trial — Applicant unable to attend hearing of appeal on points of law — Section 471 of Latvian Civil Procedure Act guaranteeing right to take part in public hearing of Supreme Court — Whether Republic of Latvia violating Article 6(1) of European Convention on Human Rights, 1950
Jurisdiction — Extraterritorial jurisdiction — Whether subject matter of application falling within jurisdiction of Republic of Latvia — Article 1 of European Convention on Human Rights, 1950 — State responsibility — Whether Republic of Latvia responsible for rights and obligations of former Union of Soviet Socialist Republics — Whether Latvia’s preliminary objection to be dismissed
Territory — Occupation — Illegal annexation — Incorporation of Baltic States into Union of Soviet Socialist Republics — Whether Baltic States inheriting rights and obligations of former Union of Soviet Socialist Republics — Independence of Latvia in 1991 — Whether Republic of Latvia responsible for pension promises made by USSR — Whether applicant as non-Latvian citizen entitled to pension for period prior to 1991 in same way as Latvian citizens
State succession — State continuity — Successor State to Union of Soviet Socialist Republics — Illegal annexation of Latvia by USSR — Independence of Latvia in 1991 — Whether Latvia responsible for employment years accrued under Soviet Union — Whether applicant as non-Latvian citizen entitled to pension for period prior to 1991 in same way as Latvian citizens — Whether difference in treatment justified — Inter-State agreements on social security with Ukraine and Russia
Nationality — Latvian citizenship — Applicant non-citizen of Latvia — Applicant formerly having USSR citizenship — Applicant now stateless — Applicant treated differently with respect to pension entitlement on basis of nationality — Whether discriminatory — Whether distinction justified — Whether legitimate aim — Whether proportionate to means employed — Whether Republic of Latvia violating Article 14 of European Convention on Human Rights, 1950, taken together with Article 1 of Protocol No 1
Latvian State Pension for Non-Citizens Case
- Latvia. 17 February 2011
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- Journal:
- International Law Reports / Volume 176 / 2018
- Published online by Cambridge University Press:
- 01 January 2021, pp. 454-476
- Print publication:
- 2018
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Human rights — Right to property — Social security system — Pension system — Retirement — Obligations of State — Different treatment — Whether objective and reasonable grounds for different treatment — European Court of Human Rights — European Convention on Human Rights, 1950
Nationality — Citizens of Latvia — Non-citizens of Latvia — Ex-USSR citizens — Aliens — Stateless persons — Obligations of State — Freedom of action — USSR immigration policy
Relationship of international law and municipal law — European Court of Human Rights — Jurisprudence of Grand Chamber — Andrejeva v. Latvia finding violation of European Convention on Human Rights, 1950 — Whether distinguishable on facts — Obligations of Latvia under Convention
State succession — State continuity — Statehood — Unlawful occupation — Illegal annexation — Rights and obligations of illegally annexed State — Restoration of independence of Latvia — USSR — Bilateral agreements — The law of Latvia
TREATY SUCCESSION IN ANNEXED TERRITORY
- Daniel Costelloe
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- Journal:
- International & Comparative Law Quarterly / Volume 65 / Issue 2 / April 2016
- Published online by Cambridge University Press:
- 04 March 2016, pp. 343-378
- Print publication:
- April 2016
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This article explores the question whether the territorial application of a treaty extends to unlawfully annexed territory. In this context, it examines State succession and the territorial application of treaties under general international law, as well as the moving treaty-frontiers rule and the extraterritorial application of certain treaties, specifically with respect to annexed territory. The article concludes that, while in some cases there is scope to find that a treaty applies extraterritorially in annexed territory, notably as a result of its object and purpose or its provisions, there may also be room, subject to the provisions of the treaty, for a limited form of treaty succession in such territory. Limitations to the obligation of collective non-recognition offer theoretical and practical support for this position.
Republic of Croatia v. Republic of Serbia
- United Kingdom, England. 2 July 2009
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- Journal:
- International Law Reports / Volume 164 / 2016
- Published online by Cambridge University Press:
- 01 January 2021, pp. 429-450
- Print publication:
- 2016
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Jurisdiction — Justiciability — Non-justiciability — Abstention of English courts from adjudicating on transactions of foreign States — Interpretation of unincorporated treaties beyond the interpretative jurisdiction of English courts — Exceptions — Protective measures to maintain status quo
Relationship of international law and municipal law — Act of State — Justiciability — Dismemberment of States — Rights, obligations, liabilities and assets of successor States — Dismemberment of Socialist Federal Republic of Yugoslavia — Agreement on Succession Issues, 2001 — Justiciability in English courts
State succession — Dissolution of States — Dismemberment of Socialist Federal Republic of Yugoslavia — Successor States — Succession to assets and liabilities of SFRY — Whether justiciable in English court — The law of England
State Succession to Bilateral Treaties: A Few Observations on the Incoherent and Unjustifiable Solution Adopted for Secession and Dissolution of States under the 1978 Vienna Convention
- PATRICK DUMBERRY
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- Journal:
- Leiden Journal of International Law / Volume 28 / Issue 1 / March 2015
- Published online by Cambridge University Press:
- 27 January 2015, pp. 13-30
- Print publication:
- March 2015
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This article examines the question of state succession to bilateral treaties. It analyses the work of the International Law Commission undertaken in the 1970s and criticizes the solutions it has adopted in the 1978 Vienna Convention on Succession of States in Respect of Treaties for different types of state succession. I will argue that it is incoherent for the ILC to apply, on the one hand, the solution of automatic continuity for bilateral treaties in the context of secession and dissolution of states, while adopting, on the other hand, the solution of tabula rasa for Newly Independent States. In any event, it is plainly unjustifiable to apply the principle of automatic continuity to bilateral treaties. Thus, while the tabula rasa principle was adopted by the ILC for multilateral treaties to protect Newly Independent States’ right to self-determination, the same solution was chosen for bilateral treaties for different reasons. The rule of tabula rasa was adopted because of the particular nature of bilateral treaties and the basic requirement that the other party to an original treaty must consent to the continuation of that treaty with a Newly Independent State. There are simply no logical reasons as to why the tabula rasa principle adopted for Newly Independent States should not also find application for all new states. Bilateral treaties do not automatically continue to be in force as of the date of succession unless both states that are implicated explicitly (or tacitly) agree to such a continuation.
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. Germany)
- International Court of Justice.
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- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 306-308
- Print publication:
- 2015
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. Italy)
- International Court of Justice.
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- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 309-311
- Print publication:
- 2015
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. Netherlands)
- International Court of Justice.
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- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 312-322
- Print publication:
- 2015
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Declarations under Article 36(2) of Statute of International Court of Justice — Condition of reciprocity — Temporal limitation — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court — Article 4 of Netherlands–Yugoslavia Convention of Conciliation, Judicial Settlement and Arbitration, 1931 — Whether invoking new basis of jurisdiction at late stage acceptable
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. Belgium)
- International Court of Justice.
-
- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 1-295
- Print publication:
- 2015
-
- Article
- Export citation
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Declarations under Article 36(2) of Statute of International Court of Justice — Condition of reciprocity — Temporal limitation — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court — Article 4 of Belgium–Yugoslavia Convention of Conciliation, Judicial Settlement and Arbitration, 1930 — Whether invoking new basis of jurisdiction at late stage acceptable
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. France)
- International Court of Justice.
-
- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 299-305
- Print publication:
- 2015
-
- Article
- Export citation
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. United Kingdom)
- International Court of Justice.
-
- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 344-350
- Print publication:
- 2015
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- Article
- Export citation
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International Court of Justice — Jurisdiction — Provisional measures — Prima facie basis for jurisdiction — Declarations under Article 36(2) of Statute of International Court of Justice — Reservations — Reservation excluding jurisdiction where applicant State had made declaration less than twelve months before filing application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Whether threat or use of force against a State amounting to genocide — Whether necessary element of intent towards defined group — Whether Serbia and Montenegro party to the Genocide Convention at relevant date — Whether Genocide Convention a treaty in force under Article 35(2) of the Statute of the Court
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Definition of genocide contained in Article II of Genocide Convention — Whether intended destruction of a national, ethnical, racial or religious group — Whether threat or use of force against a State constituting an act of genocide
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law
Legality of Use of Force (Yugoslavia/Serbia and Montenegro v. United States of America)
- International Court of Justice.
-
- Journal:
- International Law Reports / Volume 157 / 2015
- Published online by Cambridge University Press:
- 01 January 2021, pp. 351-361
- Print publication:
- 2015
-
- Article
- Export citation
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International Court of Justice — Provisional measures — Prima facie basis for jurisdiction — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article IX — Reservation to Article IX
Treaties — Application — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Reservations — Reservation to Article IX of the Genocide Convention
International organizations — United Nations — Membership — Yugoslavia — Status of Yugoslavia between 1992 and 2000 — Whether Member of the United Nations — Whether party to Statute of International Court of Justice — Whether Yugoslavia having access to Court under Article 35(1) of Statute — Whether Yugoslavia having access to Court under Article 35(2) of Statute
State succession — Succession and continuity of States — Socialist Federal Republic of Yugoslavia — Whether Serbia and Montenegro continuation of the former Socialist Federal Republic of Yugoslavia — Membership of the United Nations — Whether Yugoslavia party to Statute of International Court of Justice — Treaty obligations of the former Yugoslavia
War and armed conflict — NATO bombing of Yugoslavia — NATO Respondent States claiming humanitarian intervention — Loss of life and suffering in Kosovo — Whether NATO Respondent States violating obligation not to use force — Maintenance of peace and security — Role of Security Council — Responsibilities of Court under United Nations Charter and Statute of Court — Obligations of Parties under Charter and other rules of international law including humanitarian law