Цывкунова Интернатионал Лаw Учебно-методическое пособие 2010

Unit II. Section 4

The International Court of Justice

BRUSH UP YOUR KNOWLEDGE

•Do you know some methods of non-judicial dispute resolution?

•Name some international courts and tribunals.

Task 1. a) Read the following text and find the English equivalents for the following words and word combinations:

главный судебный орган ООН, Статут Международного Суда, постоянно действующий суд, принятие консультативных заключений (мнений), Секретариат (Международного Суда), секретарь (Международного Суда), в соответствии с (согласно), свидетели, правонарушение, иметь решающий голос в случае равного распределения голосов, подчиняться решениям Международного Суда, трехлетний, преемник, дело по спору, беспристрастность судей, имеющий силу, слушания, судебное разбирательство, доказательство, Гаага, Нидерланды,.

b) Speak about the composition, functions and powers of the ICJ.

The International Court of Justice (ICJ), the principal judicial organ of the United Nations, is a standing tribunal to which States bring their disputes.

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The Court was established by the UN Charter, and came into existence with the election of the first members in February 1946. It was however created as the successor to the Permanent Court of International Justice, established pursuant to Article 14 of the Covenant of the League of Nations in 1921, and was modeled closely on that body.

The Court consists of 15 judges, elected by the Security Council and the General Assembly for terms of nine years; the elections are staggered so that five judges complete their terms of office every three years. Judges are elected as individuals, not as representatives of their countries, and are required to make a solemn declaration in open court of impartiality in the exercise of their functions. They may not engage in any other occupation during their period of office.

The seat of the Court is at the Hague, in the Peace Palace, where the Court occupies premises under an agreement between the UN and the Carnegie Foundation, the owner of the building. The President of the Court (elected triennially by his colleagues) is to ‘direct the work and supervise the administration of the Court’ (Rules, Article 12). The day- to-day administration of the Court is the responsibility of the Registry, headed by a Registrar, elected by the Court for a seven-year term. The official languages of the Court are French and English.

It is important to mention that only States are eligible to appear before the Court in contentious cases. At present, this basically means the 192 United Nations Member States. The Court has no jurisdiction to deal with applications from individuals, nongovernmental organizations, corporations or any other private entity. It cannot provide them with legal counseling or help them in their dealings with the authorities of any State whatever.

However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.

The hearing is open to the public; the Court has power to hold a closed hearing (Statute, Article 46), but has done so only on two occasions. The written pleadings are normally made available to the public (in par-

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ticular, on the Court’s website) at the time of the opening of the oral proceedings. Evidence is normally submitted in the form of documents, though it may of course take other forms (e.g. photographs, physical object); witnesses may give written evidence, or appear at the hearing to give their evidence orally.

The decision of the Court is adopted by majority vote, the President of the Court having a casting vote in the event of a tie. A judgment of the Court is binding upon the parties to the case in which it is given. Under Article 60 of the Statute, the judgment is ‘final and without appeal’. Furthermore, under Article 94 (1), of the Charter, ‘Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party’.

In addition to its function of settling international disputes in accordance with international law, The Court is empowered by its Statute to give advisory opinions. The essence of an advisory opinion is that it is advisory, not determinative; it expresses the view of the Court as to the relevant international legal principles and rules, but does not oblige any State, to take or refrain from any action.

Today, the Court is busier than it has ever been before. Disputes have been submitted to it not only by its more established ‘clients’, but by States of Latin America, Eastern Europe, Asia and Africa. It has also seen increasing use of the possibility of requesting an advisory opinion.

All in all, the prospects for the future role of the Court in the settlement of international disputes are encouraging.

Task 2. Work in small groups: “Habeas Corpus Act”.

Task 3. Watch the video about Kosovo’s secession. Sum up the information. Comment on it.

Task 4. a) Prepare an oral summary of the article “Court clears Serbia of genocide” (2007).

b) Find in the article the English equivalents for the following expressions:

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оправдывать; бойня (резня); возбуждать судебное дело; обвинять в чем-либо; придерживаться чего-либо (соблюдать); подстрекать; постановление (решение) суда; приговор.

The UN's highest court at The Hague has cleared Serbia of direct responsibility for genocide during the Bosnian war of the 1990s. But the International Court of Justice also said Serbia violated international law by failing to prevent the 1995 massacre at Srebrenica.

Bosnia brought the case and would have sought billions of dollars from Serbia in compensation if successful. The case was the first of a state being charged with genocide. At least 100,000 people died in the 19921995 war, triggered by the break-up of the former Yugoslavia. Bosnia's Muslims and Croats wanted to cut ties with Belgrade, a move opposed by Bosnian Serbs.

The reading of the complex judgment began at 0900GMT and has taken more than two hours to deliver. The president of the court, Judge Rosalyn Higgins, said: "The court finds that the acts of genocide at Srebrenica cannot be attributed to the respondent's (Serbia) state organs."

Earlier Judge Higgins had rejected Serbia's argument that the court had no jurisdiction. The court can only rule on disputes between UN member states and as Yugoslavia's membership was suspended in 1992, with Serbia-Montenegro admitted in 2001, Serbia said its actions could not be covered. Serbia and Montenegro have since split into sovereign states.

Judge Higgins said Serbia was obliged to abide by the 1948 Genocide Convention. She also said Serbia had assumed the "legal identity" of the former Yugoslavia and that Montenegro was no longer part of the case.

A number of survivors of the Bosnian conflict demonstrated outside the court as the ruling was read out, carrying a banner reading "Serbia is guilty". One demonstrator, Hedija Krdzic, who lost her husband, father

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and grandfather in the 1995 Srebrenica massacre, said: "A ruling that Serbia committed genocide in Bosnia means everything to me."

The court's ruling that Srebrenica did constitute genocide confirmed an earlier ruling in the UN war crimes tribunal.

Bosnia said Belgrade incited ethnic hatred, armed Bosnian Serbs and was an active participant in the killings. Belgrade said the conflict was an internal war between Bosnia's ethnic groups and denied any state role in genocide.

The case, Bosnia and Herzegovina versus Serbia and Montenegro, began a year ago and a panel of judges has been deliberating since hearings ended in May 2006. Their ruling is binding. The war crimes tribunal in The Hague has already found individuals guilty of genocide in Bosnia and established the Srebrenica massacre as genocide. Bosnia, under a 1995 peace accord, is split into a Muslim-Croat federation and a Bosnian Serb state.

The latter's Prime Minister Milorad Dodik has already said it "will not accept the verdict and will not implement it". The ruling also comes with Serbia still facing challenges linked to the break-up of the former Yugoslavia. Its passage into the European Union has stalled over its failure to hand over war crimes suspects for trial.

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International Relations: News

Kosovo: to recognize or not to recognize?

(Paul Reynolds, World affairs correspondent, BBC News)

The declaration of independence by Kosovo has provoked a worldwide debate about the merits of recognizing it as a state. Several governments with breakaway movements of their own are refusing to do so. They are anxious about setting a precedent and argue against recognition on the grounds that there was no agreement between Serbia and Kosovo and no clear UN Security Council mandate.

Others have endorsed the declaration as a unique and justified move for freedom and the inevitable outcome to Kosovo's history, in which Serb troops were forced out after NATO waged war in 1999 and the province was handed over to UN control.

The numbers matter. There needs to be a critical mass of countries recognizing Kosovo to enable it to develop and prosper. The United States, which made its own declaration of independence in 1776, and whose support for Kosovo has not been in doubt, led the way in recognizing Kosovo. President Bush said: "The Kosovars are now independent."

The European Union

Several major European Union member states have also swung behind Kosovo, giving it powerful support. The EU as a whole has a key role in supervising the limited form of independence that a UN report recommended for Kosovo and which Kosovo has accepted.

Britain, France, Germany and Italy all see the Kosovo move as a oneoff and as the last piece of the old Yugoslav jigsaw being slotted into its new place.

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However, the EU, which has no common foreign policy except by agreement, is not unified. Cyprus, Romania and Slovakia are in the No camp. So is Spain, with its own separatist Basque movement. Foreign Minister Miguel Angel Moratinos said: "Spain is not going to recognize this unilateral declaration of independence... because it does not consider that this respects international law."

Russia

Beyond the EU, Russia is opposing independence, as it always has, again arguing that such a move should depend on there being an agreement with Serbia first.

"We are talking here of the disruption of all the basic fundamentals of international law in Europe, which is a result of years of suffering and wars and strife," said the Russian Foreign Minister Sergei Lavrov.

"It would undermine the basics of security in Europe... It would inevitably result in a chain reaction in many parts of the world, including Europe and elsewhere."

One question is whether Russia will now more actively support the demands of two regions of Georgia for secession. South Ossetian leader Eduard Kokoyty said: "Both South Ossetia and Abkhazia have more political and legal grounds for their independence than Kosovo... we can clearly see a policy of double standards."

China

China indicated its opposition, perhaps with Taiwan in mind. "China expresses its deep concern about Kosovo's unilateral declaration of independence," the Foreign Ministry spokesman Liu Jianchao said.

Taiwan spoke in favour of Kosovo. "Our consistent position is that we want to develop relations with any free and democratic country," spokeswoman Phoebe Yeh said. To which the Chinese spokesman re-

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plied: "It is known to all that Taiwan, as a part of China, has no right and qualification at all to make the so-called recognition."

Israel, with negotiations for a neighboring state of Palestine ongoing, was cautious, refusing to give an immediate position. Israel itself declared its independence in 1948.

Precedent?

Regions with aspirations of independence of their own are using the Kosovo declaration as a potential precedent for them.

"I salute the independence of Kosovo. No people can be forced to live under the rule of another," said Mehmet Ali Talat, leader of the Turkish Cypriots.

Kosovo is "a lesson in how to resolve conflicts of identity and membership, peacefully and democratically," said Miren Askarate, spokeswoman for the Basque regional government in northern Spain.

The chairman of the breakaway Transdniester region of Moldova, Yevgeny Shevchuk, said: "We believe that a new era started and a new system of international relations was formed the moment part of a country, based on a series of historical developments, decided to live independently, and this country can gain recognition."

•Provide some background information about Kosovo’s declaration of independence.

•To recognize or not to recognize? That is the question. Name the countries which recognized the independence of Kosovo. What is the position of Russia and China about the issue in question?

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Unit II. Section 5

The Future of the United Nations

Task 1. Watch the video. What do the speakers think about the current role of the UN? Present their arguments.

Make use of the phrases below to express opinion and (dis)belief.

In his view / in his opinion / from his point of view / to his mind

He’s (absolutely) convinced / he considers / he reckons / he shares the viewpoint that, of…

She refuses to accept / she is strongly against / she has (no) doubts about…

Task 2. Divide into two groups – pro and con, and conduct a debate on the role and importance of the UN today. Appoint the ‘Chair’ of the debate who will give the floor to the speakers of both teams.

First of all, state the problem and express your opinion:

My point is … My position is …. I have a hunch … I hold that … I espouse the view that

Secondly, evaluate the position of your counterpart and try to find the points you can share:

I share your view/concern…. I found your argument well-grounded /compelling /convincing…

Could you prioritize /rank / list your ideas? Is there any evidence to suggest…?

Thirdly, frame your arguments and focus on a key one:

It’s not to my knowledge … Common sense suggests… I argue that… I am open to objections...

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The point I want to make has to do with… The thing we need to look at is…

Then challenge the arguments of your opponents and compare approaches:

Your position does not seem quite convincing… I can’t fully agree.. It needs investigation.

It is controversial… The thing I question is… We might try another approach…

It sounds like a good idea, still there is not much evidence of its effectiveness…

Finally, summarize what you have said:

To sum up… Let’s summarize briefly what we’ve looked at… In short… To wrap it up…

To conclude… In conclusion… At the end of the day… In the final analysis…

Task 3. In pairs practice the back translation of the following phrases:

•I declare open the 64th meeting of the subcommittee.

•The provisional agenda for this meeting in contained in document 134. Unless I hear any objection, I shall consider the agenda adopted.

•The agenda is adopted.

•The first item on the agenda is consideration of the draft report on…

•The first speaker inscribed on my list is the representative of Germany to whom I give the floor.

•I thank the distinguished representative of France for his statement.

•Those in favor of my proposal, please signify by pressing the green button. Those against, the red button. And those abstaining, the yellow button.

•The result of the vote is as follows: In favor ….; Against ….; Abstentions ….. .

•My proposal is / is not adopted.

•Our next meeting will be…

•The meeting is adjourned.

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