bluuebunny/crossref_metadata_2025 huggingface dataset:
Part 8 Appeal and Revision: Appel et Révision, Art.85 Compensation to an arrested or convicted person/Indemnisation des personnes arrêtées ou condamnées
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 85 of the Rome Statute of the International Criminal Court. Article 85 grants anyone who has been the victim of unlawful arrest or detention an enforceable right to compensation. Compensation is authorized under three scenarios: (i) in the event of unlawful arrest or detention, even if a person is never brought to trial; (ii) where a person has been convicted and punished, and the conviction is later overturned as a result of discovery of new facts; and (iii) if a person has been acquitted or proceedings terminated, compensation is available when the person has been detained, but only ‘in exceptional circumstances’. The travaux préparatoires confirm the intent of the drafters to align the rights contained in article 85 with the relevant provisions of the International Covenant on Civil and Political Rights.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.86 General obligation to cooperate/Obligation générale de coopérer
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 86 of the Rome Statute of the International Criminal Court. Article 86 states the general obligation to ‘cooperate fully’ with the Court. This obligation to cooperate applies only to States Parties. If obligations to cooperate with the Court exist for non-party States, their source must be found elsewhere, for example in bilateral agreements or in Security Council resolutions. Indeed, Security Council resolutions have both confirmed that non-party States do not have any obligations under the Rome Statute and at the same time they have imposed obligations of cooperation on certain non-party States.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.87 Requests for cooperation: general provisions/Demandes de coopération: dispositions générales
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 87 of the Rome Statute of the International Criminal Court. Article 87 affirms the authority of the Court to make requests to States Parties for cooperation, and proposes a mechanism for non-compliance. It deals with the modalities of such requests and contemplates their application to non-party States as well as States Parties to the Rome Statute. Cooperation can be divided into two broad categories: surrender of suspects and ‘other forms of cooperation’ involving such measures as taking of evidence, questioning, and examination of places or sites. Article 87 establishes general rules applicable to requests for both categories of cooperation.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.89 Surrender of persons to the Court/Remise de certaines personnes à la Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 89 of the Rome Statute of the International Criminal Court. Article 89 governs the surrender of suspects to the Court. When the Court transmits a request for arrest and surrender, the requested State must comply. A State Party is obliged to authorize transportation through its territory of a person being surrendered to the Court by another State, in accordance with its national procedural law, except where transit through that State would impede or delay the surrender. The Statute also anticipates the possibility that a person whose surrender is sought will challenge transfer in the national courts on the basis of the principle of ne bis in idem, set out in article 20 of the Rome Statute.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.92 Provisional arrest/Arrestation provisoire
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 92 of the Rome Statute of the International Criminal Court. Article 92 grants the Court authority, ‘[i]n urgent cases’, to request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. When a request is made to a State in accordance with article 92, the Registrar ‘invites’ the State to inform him or her of the arrest, and ‘to provide, inter alia’, personal details and other information concerning the arrest, including a confirmation of ‘the information given to the arrested person in respect of his or her rights’.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.94 Postponement of execution of a request in respect of ongoing investigation or prosecution/Sursis à exécution d’une demande à raison d’une enquête ou de poursuites en cours
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 94 of the Rome Statute of the International Criminal Court. Article 94 is one of three provisions authorizing a State to postpone compliance with a request from the Court. The first of these, article 89(2), allows the postponement of a request for arrest and surrender until the issue of admissibility has been resolved. Similarly, article 95 contemplates postponement of a request pending an admissibility challenge, and appears to be directed at requests involving ‘other forms of cooperation’, as this is meant by article 93. Article 94 addresses a situation where a State desires to postpone execution of a request because this might interfere with an ongoing investigation or prosecution of a case that is different from that to which the request of the Court relates.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.96 Contents of request for other forms of assistance under article 93/Contenu d’une demande portant sur d’autres formes de coopération visées à l’article 93
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 96 of the Rome Statute of the International Criminal Court. Article 96 governs requests for legal assistance in accordance with article 93. It is broadly similar to article 91, which applies to the content of requests for arrest and surrender. Many of the same issues apply to both forms of request. It must also be read in conjunction with article 99, which applies to the execution of requests under articles 93 and 96. Formalities are established for requests for cooperation, in terms of the channel of communication and the language. Set out in article 87(1)(a), they apply to requests for legal assistance, including those contemplated by article 93. In urgent cases, a request may be made by any medium capable of delivering a written record, but it must subsequently be confirmed according to the formal mechanism.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.97 Consultations
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 97 of the Rome Statute of the International Criminal Court. Article 97 identifies the types of difficulties that may arise with requests for cooperation that require consultation with the Court. The first is insufficient information to execute the request. The second is difficulty in locating the person, a matter relevant to a request for surrender. But a request to locate a person might also concern questioning of an individual or a suspect, and even service of a summons to appear. Finally, article 97 contemplates the possibility that execution of the request might require the requested State to breach a pre-existing treaty obligation. Use of the term ‘pre-existing’ in article 97(c) has nourished arguments to the effect that only treaty obligations adopted prior to entry into force of the Rome Statute may be invoked to resist requests for cooperation.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.99 Execution of requests under articles 93 and 96/Exécution des demandes présentées au titre des articles 93 et 96
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 99 of the Rome Statute of the International Criminal Court. Article 99 completes articles 93 and 96 by providing for the execution of requests for assistance subject to those provisions. Paragraph 1 confirms that this will take place in accordance with applicable national law. Paragraph 2 states that when a request is urgent, the response should be sent urgently. Paragraph 3 concerns the language and form of the response. Paragraph 4 enables the Prosecutor to execute a request directly on the territory of a State Party. Paragraph confirms the application of special rules concerning national security in such situations.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.100 Costs/Dépenses
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 100 of the Rome Statute of the International Criminal Court. Article 100 deals with costs involved in surrender and other aspects of legal assistance. The general rule set out in the provision is that ‘ordinary costs’ respecting execution of requests in the territory of the requested State are to be borne by the State. It is based on accepted models in other international legal instruments. There are, however, exceptions, i.e. travel of witnesses, experts, and persons in custody is the responsibility of the Court, not the State Party. The same applies to costs of translation, interpretation, and transcription, which may be especially significant if a State opts for communication in a language other than one of the working languages of the Court, in accordance with article 87(2) of the Statute. Other costs to be borne by the Court are those of expert opinions or reports requested by the Court and transport of a person being surrendered to the Court by a custodial State.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.102 Use of terms/Emploi des termes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 102 of the Rome Statute of the International Criminal Court. ‘Extradition’ is a concept that raises difficult problems in national legal systems. For example, many States prohibit the extradition of their nationals. Article 102 attempts to address potential difficulties in this area by specifying that transfer of a person by a State to the Court is not ‘extradition’ but rather ‘surrender’. The drafters of the Rome Statute chose to use the term ‘surrender’ to govern the procedure of transfer of a suspect from a State to the Court so as to emphasize the sui generis nature of the process.
Part 10 Enforcement: Exécution, Art.103 Role of States in enforcement of sentences of imprisonment/Rôle des États dans l’exécution des peines d’emprisonnement
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 103 of the Rome Statute of the International Criminal Court. Article 103 deals with State enforcement of sentences. The enforcement regime of the International Criminal Court is premised on three broad principles: sentences are served in the prison facilities of States and are subject to their laws; enforcement of the sentence is subject to the supervision of the Court; and the sentence imposed by the Court is binding upon the State of enforcement. The provisions of the Statute governing enforcement are quite succinct, and much of the detail on the issue appears in the Rules of Procedure and Evidence.
Part 10 Enforcement: Exécution, Art.105 Enforcement of the sentence/Exécution de la peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 105 of the Rome Statute of the International Criminal Court. Article 105 declares that the Court alone shall have the right to decide any application for appeal and revision. Thus, the State where the sentence is served cannot modify the sentence imposed by the Court. Article 105(1) says that the sentence is binding on States Parties. This might lead to constitutional difficulties in some States, if for example a prisoner landed there while in transit, or escaped to such a State. Then there might be an incompatibility between a State's obligation to respect the sentence and its own internal law, mandating the individual's release.
Part 10 Enforcement: Exécution, Art.107 Transfer of the person upon completion of sentence/Transfèrement du condamné qui a accompli sa peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 107 of the Rome Statute of the International Criminal Court. Article 107 governs the transfer of the person following completion of the sentence. When a released prisoner is not a national of the State of enforcement, and is not authorized to remain there, two possible scenarios arise: transfer to a State ‘which is obliged to receive him or her’ and transfer to a State ‘which agrees to receive him or her’. Transfer of a released person to a third State upon completion of sentence will invariably require agreement. Absent such agreement, the individual will remain in the State of enforcement. In deciding upon transfer, the wishes of the released prisoner are to be taken into account.
Part 10 Enforcement: Exécution, Art.109 Enforcement of fines and forfeiture measures/Exécution des peines d’amende et des mesures de confiscation
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 109 of the Rome Statute of the International Criminal Court. Article 109 deals with the enforcement of penalties that are additional to a sentence of imprisonment. These comprise fines and the forfeiture of proceeds, property, and assets derived directly or indirectly from the commission of the crime. Responsibility for the enforcement falls to the Presidency. It has special duties in terms of tracking persons who are subject to fine, forfeiture, and reparations orders. The Presidency is ‘to seek cooperation and measures for enforcement in accordance with Part 9, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person's assets and property or with which the victim has such connection’.
Part 11 Assembly of States Parties: Assemblée Des États Parties, Art.112 Assembly of States Parties/Assemblée des États Parties
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 112 of the Rome Statute of the International Criminal Court. Article 112 establishes the Assembly of States Parties. The Assembly plays an important role in the operations of the Court, acting in its own right and through its subsidiary bodies such as the Committee on Budget and Finance. The Assembly meets once a year for about two weeks. Its responsibilities are assured on a continuous basis through its permanent Secretariat and its Bureau. In addition to what are essentially administrative functions, the Assembly of States Parties also has a legislative role. Through adoption and amendment of the Elements of Crimes and the Rules of Procedure and Evidence it exercises a significant influence upon the law applicable before the Court. It is also, together with the review conferences, the forum for amendments to the Rome Statute itself.
Part 12 Financing: Financement, Art.114 Payment of expenses/Règlement des dépenses
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 114 of the Rome Statute of the International Criminal Court. Article 114 states that the expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court. Article 114 has been described as an attempt to avoid a practice resulting from the United Nations Convention on the Law of the Sea whereby the Secretary-General pays for meetings of States Parties and other bodies out of the general budget. Thus, should the Secretary-General host meetings, any expenses incurred, for example for Secretariat services, must be paid by the Court, not the United Nations.
Part 12 Financing: Financement, Art.115 Funds of the Court and of the Assembly of States Parties/Ressources financières de la cour et de l’assemblée des états parties
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 115 of the Rome Statute of the International Criminal Court. Article 115, in a sense, completes article 114, confirming that the funds of the Court are derived from the States Parties. Specifically, it states that the expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided the following sources: assessed contributions made by States Parties; and funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.
Part 12 Financing: Financement, Art.116 Voluntary contributions/Contributions volontaires
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 116 of the Rome Statute of the International Criminal Court. Article 116 allows the Court to receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties. This criteria is set out in the Financial Regulations and Rules, which specify that voluntary contributions must be ‘consistent with the nature and functions of the Court’. Amounts received by the Court in the form of voluntary contributions have been modest. For the year 2014, they totalled less than €600,000, almost all of this earmarked for special projects such as building legal expertise, cooperation, relocation, and seminars.
Part 12 Financing: Financement, Art.117 Assessment of contributions/Calcul des contributions
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 117 of the Rome Statute of the International Criminal Court. Article 115(a) of the Rome Statute declares that one of the two sources of the funds of the Court shall be assessed contributions made by States Parties. Article 117 recognizes the principle of differential assessment, using the United Nations scale of assessments as the model, but it does not impose a precise formula. The task of specifying the assessed contributions falls, by implication, to the Assembly of States Parties. Each year, the Assembly of States Parties adopts a resolution on the assessment. The most recent ‘[d]ecides that for 2015, the contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget applied for 2013–2015, and adjusted in accordance with the principles on which the scale is based’.
Part 12 Financing: Financement, Art.118 Annual audit/Vérification annuelle des comptes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 118 of the Rome Statute of the International Criminal Court. Article 118 provides for appointment of an independent auditor to audit the records, books, and accounts of the Court, including its annual financial statements. The article, however, does not identify the body responsible for this task. Specific provision for the audit appears in the Financial Regulations and Rules, adopted at the first session of the Assembly of States Parties. They declare that the Assembly appoints the Auditor, which may be ‘an internationally recognized firm of auditors or an Auditor General or an official of a State Party with an equivalent title’. The Auditor is appointed for a renewable term of four years. The Court also has an Office of Internal Audit.
Part 13 Final Clauses: Clauses Finales, Art.120 Reservations/Réserves
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 120 of the Rome Statute of the International Criminal Court. Article 120 prohibits reservations to the Statute. The Vienna Convention on the Law of Treaties defines reservation as a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Although prohibiting reservations as such, the Statute authorizes certain declarations. Specifically, States may declare the language of correspondence and other details for purposes of legal assistance, and that they agree to accept prisoners from the Court. Two declarations expressly provided by the Rome Statute are, in reality, reservations. Both exclude the State Party from the subject-matter jurisdiction of the Court with respect to certain categories of crime.
Part 13 Final Clauses: Clauses Finales, Art.121 Amendments/Amendements
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 121 of the Rome Statute of the International Criminal Court. Article 121 is the general provision on amendment of the Rome Statute. After the expiry of seven years from the entry into force of the Statute, any State Party may propose amendments. The proposed amendment is voted upon at the next session of the Assembly of States Parties. An amendment only enters into force when seven-eighths of the States Parties have deposited instruments of accession or ratification. A State that does not agree may withdraw from the Statute with immediate effect. A special regime is established for changes to the subject-matter jurisdiction of the Court.
Part 13 Final Clauses: Clauses Finales, Art.122 Amendments to provisions of an institutional nature/Amendements aux dispositions de caractère institutionnel
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 122 of the Rome Statute of the International Criminal Court. Article 122 provides full and exhaustive list of provisions of the Statute ‘which are of an exclusively institutional nature’. These consist of the service of judges (art. 35), criteria for the section of judges (art. 36(8)), terms of judges (art. 36(9)), judicial vacancies (art. 37), the Presidency (art. 38), organization of Chambers, with the exception of the requirement that Pre-Trial and Trial Chambers be composed predominantly of judges with criminal trial experience (art. 39(1), first two sentences), composition of Chambers (art. 39(2), (4)), election of the Prosecutor and Deputy Prosecutors (art. 42(4)), independence and recusal of the Prosecutor and Deputy Prosecutors (art. 42(5)-(8)), advisers to the Prosecutor (art. 42(9)), appointment and qualifications of the Registrar (art. 43(2), (3)), Staff (art. 44), removal from office (art. 46), disciplinary measures (art. 47), and salaries, allowances, and expenses (art. 49).
Part 13 Final Clauses: Clauses Finales, Art.123 Review of the Statute/Révision du statut
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 123 of the Rome Statute of the International Criminal Court. Article 123 provides a mechanism for convening a Review Conference to consider any amendments to this Statute. It also requires that a review conference be held seven years after entry into force of the Statute. The Review Conference contemplated by article 123 took place in 2010. No further review conferences have been convened. The functions and authority of a review conference, whose central function is the adoption of amendments to the Statute, appear to be the same as those of a meeting of the Assembly of States Parties.
Part 13 Final Clauses: Clauses Finales, Art.125 Signature, ratification, acceptance, approval, or accession/Signature, ratification, acceptation, approbation ou adhésion
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 125 of the Rome Statute of the International Criminal Court. Article 125 governs the mechanisms by which States become parties to the Rome Statute. While a signature of a treaty may, under certain circumstances, constitute a means of indicating a State's acceptance to be bound by the treaty's provisions, in the context of the Rome Statute signature is only a preliminary act — ‘a first step to participation’. It must be followed by deposit of an instrument of ratification, approval, or accession for the State to become a party to the Statute. The article also establishes, although somewhat implicitly, that the Secretary-General of the United Nations is the depositary of the Statute.
Part 13 Final Clauses: Clauses Finales, Art.128 Authentic texts/Textes faisant foi
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 128 of the Rome Statute of the International Criminal Court. Article 128 declares that the original of this Statute, of which the Arabic, Chinese, English, French, Russian, and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States. The six versions of the authentic text of the Statute correspond to the six official languages of the United Nations. It is normal practice to specify that all versions are equally authentic. Because of the complexities of the Statute and the haste with which the Conference operated, there were inevitably some errors in the versions that were actually voted upon on July 17, 1998. Subsequently, corrections were circulated to the participants for their concurrence, and the official text is now slightly different from the one adopted at the Conference.
Deposit Protection and Bank Resolution
Authors: Kleftouri Nikoletta
Published: June 2017

The 2007–08 global financial crisis proved that the interests of bank depositors are inadequately protected. Although a vast expansion in deposit protection systems around the world followed, our understanding of the impact of those systems and their interaction with bank resolution is still in its infancy. The focus of bank resolution studies has been on the largest systemically important banks, which have wholesale creditors who would be bailed in, leaving retail depositors untouched. However, many banks rely mostly on deposits for financing, and the number of banks of this form is expected to increase. This book aims to explain and provide current material analysis of deposit protection and bank resolution regimes. The analysis is based on an examination of the traditional rationales for creating deposit insurance and bank resolution, and a specific study of the UK, EU, and US legal frameworks. It aims to offer an analysis of this topic and to cover all relevant regulations, from its origins to its most recent developments, in a systematic and thorough way. It approaches the much-desired objective of financial stability from a different angle: that of depositor protection. This book comprises ten chapters, analysing: the rationales for creating a deposit protection system; the limitations of deposit protection systems; the European deposit insurance framework; the European banking union; recent cases on deposit guarantee schemes; international standards on deposit insurance; the UK deposit insurance framework; international and European regulatory developments on bank resolution; the UK Special Resolution Regime; and the US paradigm.
Rationales for Creating a Deposit Protection System
Authors: Kleftouri Nikoletta
Published: June 2017

A deposit protection system’s rationale is a key starting point in understanding its design and role within a financial safety-net system. A weighting towards the’ protection of depositors’ objective implies a system with a low coverage level, while a weighting towards promoting financial stability will lead to high coverage levels. The objective of depositors’ protection often means the existence of a ‘pay box’ mandate, while financial stability requires broader powers for the deposit insurer in addition to its payout mandate. This chapter uses the UK regulatory regime as its main reference point and tries to explore the full potential of an effective deposit insurance system.
The European Deposit Insurance Framework
Authors: Kleftouri Nikoletta
Published: June 2017

The euro’s launch in 1999 accelerated the integration of Europe’s financial markets. Upheavals in the banking sector and debt markets since 2007 have, however, both reinforced (regulatory and supervisory reforms) and halted (government protectionism) this development. The latter ‘renationalization’ process was accentuated by the enormous amounts of state aid that national governments channelled to banks through public loans, capital injections, and guarantees. The European Union consequently faced two equally important and complex challenges—plugging regulatory and supervisory gaps to prevent future crises, while limiting the economic damage of the crisis—which the chapter reviews from a depositor protection perspective. The chapter examines the guiding 1994 Deposit Guarantee Schemes Directive, and identifies relevant regulatory and supervisory reforms that have taken place since 2007, including the 2014 recast Directive and creation of the European Banking Authority. It concludes by offering an overview of the main critiques of these regulatory and supervisory developments.
The UK Deposit Insurance Framework
Authors: Kleftouri Nikoletta
Published: June 2017

The Financial Services Compensation Scheme, the UK’s deposit insurer, has been subject to a broad overhaul during the last few years. This chapter divides these regulatory developments into three phases: (a) the creation of the first explicit deposit protection scheme; (b) the series of reforms that took place in 2000 and the creation of the FSCS as a single protection scheme for financial institutions; and (c) the post-2007 era during which main changes include the creation of the Prudential Regulation Authority and Financial Conduct Authority as two separate regulators, and further strengthening of deposit insurance arrangements. The chapter concludes that key deposit insurance design reforms are still missing from the UK regime.
International and European Regulatory Developments on Bank Resolution
Authors: Kleftouri Nikoletta
Published: June 2017

This chapter sets out the international standards for effective bank resolution regimes, as well as the Bank Recovery and Resolution Directive, which establishes a European framework for the recovery and resolution of banks and large investment firms. Other relevant European regulatory developments are also examined, including the European Commission state aid rules, the Single Resolution Mechanism Regulation, and the European Commission proposal for structural reforms in relation to banking groups. It concludes that although only a few jurisdictions have resolution regimes in place that are fully, or almost fully, aligned with the Financial Stability Board standards, the work undertaken in connection with the design and implementation of recovery and resolution planning requirements by all global systemically important banks represents a major regulatory success.
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 174
Authors: Wessel Ramses A
Published: June 2017

Legal personality has become a key—and much debated—issue in the law of international organizations. The popular narrative presents the possession of legal personality as a necessary requirement for international organizations to act in a legal sense. Also in the classic case under review here, the Court basically argued that in order for it to be able to assess the possibility of bringing a claim, it should first establish whether the organization has legal personality. At the same time, these days international personality is seen as a characteristic of an international organization. This chapter discusses these issues and also places them in their current context.
Maclaine Watson & Co. Ltd v International Tin Council, 26 October 1989, United Kingdom House of Lords, 81 ILR 670
Authors: Palchetti Paolo
Published: June 2017

This judgment constitutes one of the most authoritative precedents on the question concerning responsibility of members for acts of the organization. The House of Lords denied the existence of a rule of general international law according to which, in the absence of an express provision in the constitutive treaty excluding the responsibility of the members, they are responsible, jointly and severally, for the breach by the organization of its obligations to third parties. According to the House of Lords, the separate legal personality of an international organization precludes that the members can be held responsible, due to their membership, for the conduct of the organization. The judgment also addresses the question of whether the effects stemming from the possession of a separate legal personality have to be determined by reference to international law or by reference to the domestic law of the forum state.
Legality of the Use by a State of Nuclear Weapons in Armed Conflict International Court of Justice, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 66
Authors: Burci Gian Luca , Quirin Jakob
Published: June 2017

The International Court of Justice advisory opinion of 8 July 1996 that responded to a request from the World Health Organization contains important guidance on the delimitation of competence and co-ordination of international organizations, in particular those forming part of the UN system. The Court held by eleven votes to three that it did not have jurisdiction to give the advisory opinion ‘which was requested of it’. The opinion marks an important step in the Court’s jurisprudence in that it focusses not on an expansion of competence of international organizations as previous ICJ jurisprudence, but rather on the limits of this competence. The opinion is a succinct reminder of the tension between the goal to effectively and efficiently ‘divide labour’ between the mandates of the UN and the specialized agencies and the relative lack of mechanisms to enforce this division of labour.
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v United States of America), Request for the Indication of Provisional Measures, Order of 14 April 1992, [1992] ICJ Rep 114
Authors: Davies-Bright Lydia , White Nigel D
Published: June 2017

The case presented the International Court of Justice with the possibility of reviewing the legality, or at least the legal effects, of a Chapter VII resolution of the Security Council in contentious proceedings brought by Libya arising out of its refusal to extradite two Libyan agents suspected by the US and UK of being responsible for the 1988 bombing of a Pan Am plane over Lockerbie in Scotland. The case did not reach the merits state but the earlier judicial stages, highlighted in this chapter, suggested that the judicial arm of the UN might have been prepared to review the actions of the executive arm.
Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, [1948] ICJ Rep 57; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, [1950] ICJ Rep 4
Authors: Fry James D , Chong Agnes
Published: June 2017

Statehood traditionally has been determined by reference to the Montevideo Convention criteria. However, more recently, many commentators have come to see collective recognition through UN membership as the main avenue to statehood, a view supported by the extraordinary efforts taken by emerging states to gain UN membership. Only states can be UN members, and so UN membership is the ‘badge’ of statehood, or so the argument goes. In light of this shift to collective recognition through UN membership, the two ICJ advisory opinions gain particular importance. In responding to the political stalemate in the Security Council over admission of new UN members, the ICJ insisted on adhering to the legal rules of the UN Charter concerning admission, which is one of the main lessons of these advisory opinions. However, politics ultimately prevailed over the law when resolving the stalemate, which might be the more important lesson.
Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment, Case No. 1A 45/2007, Switzerland, Federal Tribunal, 14 November 2007, 133 BGE II 450; ILDC 461 (CH2007)
Authors: Tzanakopoulos Antonios
Published: June 2017

This case-note discusses the pertinent aspects of the Swiss Federal Tribunal’s decision in the Nada case, where the Tribunal was invited to review sanctions imposed by the United Nations Security Council against Youssef Nada. In a decision closely mirroring the approach of the General Court of the European Union (back then still called the Court of First Instance) in the first Kadi case, the Tribunal accepted to review Security Council sanctions only against the high threshold of jus cogens, and confirmed the legality of the sanctions, leading Nada to bring a case against Switzerland before the European Court of Human Rights.
Case No. IT-95-9-PT, Decision on the Motion for a Judicial Assistance to be Provided by SFOR and Others, Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, 18 October 2000
Authors: van der Wilt Harmen
Published: June 2017

This commentary concerns a decision by the International Criminal Tribunal for the former Yugoslavia in the Simić case that addressed the question whether the Tribunal could issue binding orders to international organizations like SFOR (Stabilization Force). Following the Blaskić-precedent that decided on a similar issue in respect of states—and applying this precedent by analogy—the Chamber concluded that it was authorized to do so. The appearance and testimony of a SFOR-official was necessary in order to shed light on the alleged abduction of Mr Todorović prior to his surrender to the Tribunal. By summoning the witness to the court, the Chamber acknowledged that irregularities during pre-trial investigations might have procedural consequences. The commentary engages in a brief discussion of the case law of the Tribunal on the topic, noting that, while the Tribunal is not much concerned about state sovereignty, it takes the fundamental rights of accused seriously.
Westland Helicopters Ltd v Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Egypt, and Arab British Helicopter Company, Arbitration, 5 March 1984, 80 ILR 600
Authors: Ahlborn Christiane
Published: June 2017

This chapter treats the arbitration between Westland Helicopters Ltd and the Arab Organization for Industrialization (AOI) as well as its member states. After several AOI member states decided to dissolve the organization in 1979, Westland Helicopters Ltd filed a request for arbitration before the International Chamber of Commerce, claiming damages for non-fulfilment of contractual obligations. The Westland Helicopters arbitration is the first case in which a dispute settlement body had to decide on the possible responsibility of states for the wrongful acts of an international organization. While the Arbitral Tribunal in Westland Helicopters decided to hold AOI member states responsible alongside the international organization, Swiss courts later reversed this decision. The Westland Helicopters cases thus foreshadowed the debate, including many of the recurrent arguments, on whether and when the corporate veil of an international organization should be pierced.
Bosphorus Hava Yollari Turizm veTicaret Anonim Sirketi v Ireland, App. No. 45036/98, European Court of Human Rights, 30 June 2005
Authors: Lock Tobias
Published: June 2017

In Bosphorus the ECtHR introduced the so-called Bosphorus presumption: if a member state of an international organization acted in compliance with an obligation arising from its membership and had no discretion, there is a rebuttable presumption that the member state has complied with its obligations under the ECHR provided that the organization itself ensures a protection of fundamental rights equivalent to what the Convention requires. The Court considered that the European Union met this test. If an organization provides equivalent protection, the presumption can be rebutted, but only if this protection was manifestly deficient in the concrete case. By formulating the presumption the ECtHR showed a great deal of respect for the European Court of Justice and placed the relationship between the two European courts on relatively solid ground. A number of questions remain, however.
Gasparini v Italy and Belgium, App. No. 10750/03, Admissibility Decision, European Court of Human Rights, 12 May 2009
Authors: Lock Tobias
Published: June 2017

The significance of Gasparini lies in the manner in which it applies the Bosphorus presumption to an organization (NATO) that is not the European Union. Furthermore it introduces important distinctions regarding the requirement of state involvement as a precondition for an alleged violation to have arisen within the jurisdiction of the respondent state. Refining some of its earlier case law (Connolly and Boivin), the ECtHR drew a line between actual decisions by the organization and deficiencies in the protection of fundamental rights, rooted in a structural lacuna of the internal mechanism for conflict resolution. Where a structural lacuna exists, the violation is attributable to the member state even though organs of the respondent member state were not immediately involved in the violation.
Mukeshimana-Nguilinzira and ors. v Belgium and ors., Brussels Court of First Instance, ILDC 1604 (BE 2010), 8 December 2010
Authors: Ryngaert Cedric
Published: June 2017

In Mukeshimana, the Brussels Court of First Instance held that a decision to evacuate a compound in Rwanda, occupied by the Belgian military in the framework of an UN peace operation, was attributable to Belgium, and could engage Belgium’s responsibility. After the evacuation, Interahamwe militia killed most persons who had sought refuge on the compound. The Court fails to provide proper conceptual arguments for such attribution, limiting itself to stating that the case should be distinguished from the Behrami decision of the European Court of Human Rights. Arguably, Mukeshimana should have been based on the effective control standard as laid down in art. 7 of the Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts, and as applied by Dutch courts in the Srebrenica litigation against the Dutch State.
Manderlier v Organisation des Nations Unies and Etat Belge (Ministre des Affaires Etrangères), Tribunal Civil de Bruxelles, 11 May 1966, Journal des Tribunaux, 10 December 1966, No. 4553, 121
Authors: Schmitt Pierre
Published: June 2017

This 1966 case constitutes one of the first cases in which UN immunity from jurisdiction was challenged. Apart from the question whether the UN had legal personality under domestic law, all other arguments raised by the plaintiff in this case—seeking to restrict UN immunity from jurisdiction—are still debated nowadays before domestic jurisdictions. The Brussels Civil Tribunal notably examined whether the UN’s immunity was conditional upon the latter’s respect of art. VIII, Section 29 of the Convention on Privileges and Immunities of the United Nations, whether the immunity could be rejected in favour of a human rights argument based on the right of access to justice, and whether it could only be invoked in relation to actions or situations that were necessary for the UN to achieve its goals. Finally, it assessed the existence of a waiver in this particular case.
Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996)
Authors: Ruys Tom
Published: June 2017

The present case affirms the immunity from legal process of the United Nations and UN personnel acting in their official capacity in procedures before national courts (regardless of allegations of malfeasance). Although the Court refrains from explicitly pronouncing on the consequences of possible discrepancies between immunities granted under domestic law and international law, it acknowledges that the 1946 General Convention on the Privileges and Immunities of the United Nations provides immunity from ‘every form of legal process’, the only exception being express waiver by the United Nations itself. In the margin, it sheds light on the scope of the doctrine of ‘restrictive immunity’, by holding that acts that form part and parcel of military and humanitarian peacekeeping operations (including the occupation of property to house troops etc.) involve the exercise of governmental functions rather than private commercial activity and thus benefit from immunity.
League of Arab States v T M., Belgian Court of Cassation, ILDC 42 (BE 2001), 12 March 2001
Authors: Ryngaert Cedric
Published: June 2017

In League of Arab States, the Belgian Court of Cassation held that the League could not rely on its immunity from jurisdiction before Belgian courts, as, absent parliamentary approval, the Headquarters Agreement between Belgium and the League could not have domestic legal consequences. The Court added that there was no general principle of public international law in the sense of art. 38(1)(c) ICJ Statute to the effect of international organizations enjoying immunity from jurisdiction. This decision is in line with decisions from other jurisdictions, which require a treaty basis for international organization immunity to be successfully invoked. It contrasts however with an earlier decision by the Dutch Supreme Court (Spaans), pursuant to which the immunity of international organizations follows from customary international law.
Entico Corporation Ltd v UNESCO, 18 March 2008, [2008] EWHC 531 (Comm), [2008] 2 All ER (Comm) 97
Authors: Wickremasinghe Chanaka
Published: June 2017

Entico v UNESCO provides the most detailed examination to date by a court in the UK of the relationship between the immunity of an international organization, UNESCO, and the right of access to a court, as it is implied in the interpretation of art. 6 of the European Convention on Human Rights. It raises an interesting question about the applicability of the much-cited judgment of the European Court of Human Rights in Waite and Kennedy in the context of a UN Specialised Agency. The case teaches us that the huge variety of international organizations means that the extent of their immunities must be fashioned in the case of each organization to meet their particular functional needs. This suggests that the national court needs to approach generalizations with care, and a full appreciation of the international legal context that governs the organization in question.
Conclusions
Authors: Marboe Irmgard
Published: June 2017

The concluding chapter summarizes the most important economic and legal principles and filters out guidelines for the calculation of compensation and damages in the practice of international investment disputes. The legal standard mandated by the bases of claims represents the starting point for the choice of the appropriate valuation approaches and methods. With regard to the decision on interest, tribunals must establish the appropriate rate of interest, the period of interest, and decide if interest should be compounded. This is necessary in relation to pre-award and post-award interest.