International Law
Abbasali Kadkhodaei; Mohammadreza Mohammadi
Abstract
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process ...
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The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process occurs to take advantage of a process with different intentions in order to disrupt proceedings. Abuse of rights is an issue that is related to the substantive part of a case, while abuse of process is a non-substantive issue in most cases and is raised in the admissibility. This study's main objective is to examine the practice of the ICJ in relation to the abuse of rights and abuse of process. The research method of this research is descriptive-analytical by using library-documentary sources. Despite the refusal of the court to state the status of abuse of rights and process, today these concepts can be referred to as general principles of law in international law. This article proves that the court considers a high threshold to accept the realization of the abuse of rights and process, and so far it has not been able to confirm such abuse.
International Law
Mahshid Ajeli lahiji; S. Ali Hosseiniazad; Majid Zahmatkesh
Abstract
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a ...
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Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a case. Especially, in the cases concerning the Arrest Warrant (Congo v. Belgium 2002) and the Jurisdictional Immunities (Germany v. Italy 2012), ICJ tried to separate procedural and substantive norms and declared that the norms of immunity and jus cogens are different in nature, thus they couldn’t oppose each other but immunity as a procedural norm could prevent deciding about merits. In this article, by using descriptive – analytic method, the rationale behind the decision of ICJ is analyzed in order to know that if immunity is considered procedural and jus cogens is recognized as substantive norm in international law and how these norms interact. Evaluation of doctrine shows that there is no certainty about the quality of the separation of procedural and substantive norms and their proof in international law. Therefore, the court’s decision in choosing the approach could cause an insecurity in the peremptory place of jus cogens.
International Law
Alireza Ebrahimgol; Hasan Khosroshahi
Abstract
The International Court of Justice is empowered, under Article 41 of its Statute, to order provisional or interim measures of protection to preserve the respective rights of the party-states pending final judgment on the merits. Through interpreting Article 41, the Court has developed in ...
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The International Court of Justice is empowered, under Article 41 of its Statute, to order provisional or interim measures of protection to preserve the respective rights of the party-states pending final judgment on the merits. Through interpreting Article 41, the Court has developed in its case-law certain requirements for granting requested interim measures. The plausibility of claims is the sixth requirement recently added to the said requirements. The present research assesses the role of plausibility requirement in preservation of international human rights in light of evolution of this requirement in the court’s case law as well as the existing legal doctrine. The study indicates that an inconsistent approach to satisfaction of the plausibility requirement and prejudgment of the substance of the case could harm the transparency and predictability of the procedure governing provisional measures, and undermine such measures as one of the most effective legal mechanisms in preventing the breach of international law.
Abstract
One of the most important legal issues which is mentioned in rules of ICJ is Counterclaim. This issue is mentioned in rules of both permanent international court of justice and ICJ and now is noticed in article 80 of rules. Article 80 considers two elements that if a claim enjoys them, it will be called ...
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One of the most important legal issues which is mentioned in rules of ICJ is Counterclaim. This issue is mentioned in rules of both permanent international court of justice and ICJ and now is noticed in article 80 of rules. Article 80 considers two elements that if a claim enjoys them, it will be called counterclaim, these two elements are Direct connection with the subject matter of the claim and “Jurisdiction over the counterclaim. But this article does not explain the details and does not illustrate what does it mean about the conditions. Inspite of all of the reforms and reviews which is done, This general statement spawned the legal ambiguity that when and how ICJ recognizes a claim as counterclaim. Nevertheless, ICJ by it´s practice could answer to these ambiguity and established relatively complete regime for concept of counterclaim. ICJ for recognizing the first element, considers facts, common legal facts,legal aims and for the second element consider the reaction of the respondent of the counterclaim.
Mohammad Hossein Ramazani Ghavam Abadi
Volume 15, Issue 40 , September 2013, , Pages 141-164
Abstract
Precautionary principle is one of the pivotal principles in the realm ofInternational Environmental law. For insuring sufficient protection of theenvironment, the Precautionary Approach requires states to takecomprehensive precautionary measures in line with their affordablecapabilities. Lack of ready ...
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Precautionary principle is one of the pivotal principles in the realm ofInternational Environmental law. For insuring sufficient protection of theenvironment, the Precautionary Approach requires states to takecomprehensive precautionary measures in line with their affordablecapabilities. Lack of ready access to definitive scientific facts and figures,where there are threats of serious or irreversible damages, certainty maynot lay the foundation for evading effective measures be taken as tosafeguard environmental against degradation. Although manyinternational environmental instruments have made reference to theprinciple, it is not well respected and adequately adhered to byinternational tribunals. This paper seeks to examine the legal validity ofthis principle before such tribunals.
Hosain Sharifi Tarazkohi; Heidar Piri
Volume 14, Issue 38 , March 2013, , Pages 9-37
Abstract
Undoubtedly, one of the most ambiguous and controversial concepts in
the international law documents is the debate on the vital national interest
which is as old as the concept of nation-state itself and every country due
to its own situations and conditions gives a specific interpretation of this
concept. ...
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Undoubtedly, one of the most ambiguous and controversial concepts in
the international law documents is the debate on the vital national interest
which is as old as the concept of nation-state itself and every country due
to its own situations and conditions gives a specific interpretation of this
concept. The concept of vital national interest, has created a juridical gap
and as an essentially political concept has kept its place in juridical texts,
which is considered as one of the main obstacles for developments and
progresses of international law, because it has been used by states in
many ways as a shield against legal standards, as well as as a tool to
escape from legal obligations. Therefore, it lays some restrictions on the
application of international law rules, yet it looms its acts and claims for
regarding international law.
International Jurisprudence expresses that, in the relationship between the
vital national interests and international legal orders, it is the legal system
which has the prior importance. owever, contrary to the government’s view,
they allow restricted vital national interest and declare that national interest
subordinates to International Law and it is not subject to the of each state.
International Law has always tried to interpret thevital national interests in a
way that results in the least loss to the universal International values.
S.Ghasem Zamani; Soheila Kusha
Volume 14, Issue 38 , March 2013, , Pages 163-192
Abstract
One of the aspects of international law for peaceful settlement of legal
disputes is the consent of parties to the jurisdiction of international court
of justice (ICJ). In this regard, the way this consent will be presented, is
not important. By taking into account of this rule and jurisprudence of ...
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One of the aspects of international law for peaceful settlement of legal
disputes is the consent of parties to the jurisdiction of international court
of justice (ICJ). In this regard, the way this consent will be presented, is
not important. By taking into account of this rule and jurisprudence of ICJ
and short comings of statute of the court, there must be some other
jurisdictions which are beyond those ones anticipated in the statute of the
international court of justice (ICJ). For these reasons,there is another kind
of jurisdiction which is called "Forum Prorogatum",in rules of the court.
According to this kind of jurisdiction, the respondent can informimpliedly
or expressly the court about its consent.Even after,filing an application by
defendant in the registry of the court. It can be done impliedly by taking
an action or participation in hearing without any objections or explicitly
by sending a letter in this regard to the court. This kind of jurisdiction at
first applied by [PCIJ] in the case of Mavrommatis Palestine concessions
(Greece/ United Kingdom) and gradually finds its place in jurisprudence
of the court. In a way that nowadays becomes a usual way of filling an
application in registry of the court for exercising its jurisdiction. we will
consider the latest judgment of court in case concerning "Certain
Questions of Mutual Assistance in Criminal matters" (Djibouti /France) 4
June 2008 in this essay and discuss its challenges.
Mohammad Reza Hoseini
Volume 14, Issue 38 , March 2013, , Pages 193-219
Abstract
One of the aspects of international law for peaceful settlement of legal
disputes is the consent of parties to the jurisdiction of international court
of justice (ICJ). In this regard, the way this consent will be presented, is
not important. By taking into account of this rule and jurisprudence of ...
Read More
One of the aspects of international law for peaceful settlement of legal
disputes is the consent of parties to the jurisdiction of international court
of justice (ICJ). In this regard, the way this consent will be presented, is
not important. By taking into account of this rule and jurisprudence of ICJ
and short comings of statute of the court, there must be some other
jurisdictions which are beyond those ones anticipated in the statute of the
international court of justice (ICJ). For these reasons,there is another kind
of jurisdiction which is called "Forum Prorogatum",in rules of the court.
According to this kind of jurisdiction, the respondent can informimpliedly
or expressly the court about its consent.Even after,filing an application by
defendant in the registry of the court. It can be done impliedly by taking
an action or participation in hearing without any objections or explicitly
by sending a letter in this regard to the court. This kind of jurisdiction at
first applied by [PCIJ] in the case of Mavrommatis Palestine concessions
(Greece/ United Kingdom) and gradually finds its place in jurisprudence
of the court. In a way that nowadays becomes a usual way of filling an
application in registry of the court for exercising its jurisdiction. we will
consider the latest judgment of court in case concerning "Certain
Questions of Mutual Assistance in Criminal matters" (Djibouti /France) 4
June 2008 in this essay and discuss its challenges.
