Правовая терминология в контексте международного права (английский язык для студентов юридических вузов и факультетов). Учебное пособие

in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” (article 31(1)) This is actually a compromise between three different theories of interpretation:

■ The textual approach is a restrictive interpretation which bases itself■onthe“ordinarymeaning”ofthetext,theactualtexthasconsiderable weight■ A. subjectiveapproachconsiderstheideabehindthetreaty,treaties “in their■ context”, what the writers intended when they wrote the text.

■ A third approach bases itself on interpretation “in the light of its■ object and purpose”, i.e. the interpretation that best suits the goal of the treaty, also called “effective interpretation”.

These are general rules of interpretation; specific rules might exist in specific areas of international law.

H.

Read and translate the text. Write down the law terms known toyou.

Apart from a state’sEnforcemenatural inclinationby Statesto uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state’s reputation. Though violations may be common infact, states try to avoid the appearance of having disregarded international obligations.

Statesmayalsounilaterallyadoptsanctionsagainstoneanothersuch as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against aforeignstate(therealmofprivateinternationallaw)foraninjury,though this is a complicated area of law where international law intersects with domestic law.

States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force incollective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.

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I.

Read the text. Make up a plan of the text. Retell the text according toyourplan.

Violations ofEnforcementthe UN CharterbybyInternationalmembers of theBodiesUnited Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the “Uniting for Peace”-resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches ofthe Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted themilder“threattothePeace”.Thelegalsignificanceofsucharesolution is unclear, as the General Assembly cannot issue binding resolutions.

They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend “Pacific Resolution of Disputes.” Such resolutions are not binding under international law, though they usually are expressive of the council’s convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to “threats to Peace, Breaches of the Peace and Acts of Aggression,” and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; thelegal basis for that isthe Council’s broad powers under Article 24(2), which states that “in discharging these duties (exercise of primary responsibility in international peace and security), it shall act inaccordance with the Purposes and Principles of the United Nations”. The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague, Netherlands.ThejudgmentsgivenbytheCourtinthesecasesarebinding, although it possesses no means to enforce its rulings.

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some

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of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction.

Oftenenormouslycomplicatedmatters,ICJcases(ofwhichtherehave beenlessthan150sincethecourtwascreatedfromthePermanentCourt of International Justice in 1945) can stretch on for years and generally involvethousandsofpagesofpleadings,evidence,andtheworld’sleading specialist public international lawyers. Asof2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration maybebindingornon-bindingdependingonthenatureofthearbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.

Though states (or increasingly, international organizations) are usuallytheonlyoneswithstandingtoaddressaviolationofinternational law,sometreaties,suchastheInternationalCovenantonCivilandPolitical Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

ReadJ. the text carefully and divide it into logical parts. Give each part a suitable heading. Retell each part in brief in English.

The InternationalInternaCourtiofnalJusticeCourt(knownof Justicecolloquially as the World Court or ICJ) is the principal judicial organ of the United Nations. Establishedin1946,itsmainfunctionsaretosettledisputessubmittedtoit by states and togive advisory opinions on legal questions submitted toit by theUN General Assembly or General Assembly or UN Security Council orSecurityCouncil,orbysuchspecializedagenciesasmaybeauthorized to do so by the General Assembly in accordance with the United Nations Charter. The Statute of the International Court of Justice is the main constitutional document constituting and regulating the Court.

This court is different from the International Criminal Court and the War Crimes Law (Belgium), both of which have been confused with the International Court of Justice.

TheseatoftheCourtisinTheHague,NetherlandsortheNetherlands. It is composed of fifteen judges elected by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groupsinthePermanentCourtofArbitration.Judgesservefornineyears and may be re-elected. No two may be nationals of the same country.

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One-third of the Court is elected every three years. Each of the five permanent members of the Security Council (France, the People’s RepublicofChina,Russia,theUnitedKingdom,andtheUnitedStates)have always had a judge on the Court. Questions before the Court are decided by a majority of judges present. Article 38 of the Statute provides that inarrivingatitsdecisionstheCourtshallapplyinternationalconventions, international custom, the “general principles of law recognized by civilized nations”. It may also refer to academic writing and previous judicial decisions to help interpret the law, although the Court is not formally bound by its previous decisions. If the parties agree, the Court may also decide ex aequo et bono, or “in justice and fairness”, in which the Court makes adecision based on general principles offairness rather than specific law.

There are two distinct types ofcases upon which the court may rule: contentious issues between states in which the court produces binding rulings between states that agree, or have previously agreed, to submit totherulingofthecourt,andadvisoryopinions,whichprovidereasoned, butnon-binding,rulingsonproperlysubmittedquestionsofinternational law, usually at the request of the United Nations General Assembly. Advisory opinions do not have to concern particular controversies between states, though they often do.

NumerousJurisdictioninternational treaty or treaties specify the Court as the arbiter of disputes over interpretation and application of the agreement. For instance, Article 32(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides for mediation and other dispute resolution options, but also states that “any such dispute which cannot be settled ... shall be referred, at the request of any one of the States Parties to the dispute, to the International Court of Justice for decision”. The Single Convention on Narcotic Drugs and Convention on Psychotropic Substances contain similar provisions.

OnlyContentiousstatesIssuesmay be parties in contentious cases before theInternationalCourtofJustice.Thisdoesnotprecludeprivateinterests from being the subject of proceedings if one state brings thecase against another. Jurisdiction of the court is limited only to cases where both parties have submitted their dispute to the court. Should either party fail “to perform the obligations incumbent upon it under a judgment rendered by the Court”, the UN Security Council or Security Council may

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be called upon to “make recommendations or decide upon measures” if the security council deems such actions necessary.

Inpractice,theCourt’spowershavebeenlimitedbytheunwillingness of the losing party to abide by the Court’s ruling, and by the Security Council’s unwillingness to enforce consequences.

However, in theory, “so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal,” and “by signing the Charter, a State Member of the United Nations undertakes to comply with any decision ofthe International Court ofJustice ina case to which it is a party”.

Forexample,inNicaraguav.UnitedStatestheUnitedStatesorUnited States of America had previously accepted the Court’s compulsory jurisdiction upon its creation in 1946 but withdrew its acceptance following the Court’s judgment in 1984 that called on the United States to “cease and to refrain” from the “unlawful use of force” against thegovernmentofNicaragua.Inasplitdecision,themajorityoftheCourt ruled the United States was “in breach of its obligation under customary international law not to use force against another state” and ordered the US pay reparations, although it never did.

Examples■ A disputeof casesbetweeninclude:Tunisia and Libya over the delimitation of the■ continental shelf between them

■ A dispute over the course of the maritime boundary dividing the U■.S. and Canada in the Gulf of Maine area

■ A complaint by the Federal Republic of Yugoslavia against the member■ states of the North Atlantic Treaty Organization regarding their actions in the Kosovo War. This was denied on 15 December, 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application.

ThelastexamplecanbeusedasevidenceoftheCourt’sfailuretotake on politically controversial cases; as the Court has no means to enforce itsrulings,itssurvivalisdependentonitspoliticallegitimacy.Thatwould be endangered if it constantly came with rulings which states have no interest of taking into consideration (which would have been the case in the event of a ruling in favor of FRY). This is one of the Court’s major shortcomings: its rulings must be considered in a political context.

AnadvisoryOpinionopinion is a function of the court open only to specified United Nations bodies and agencies. On receiving a request, the Court decideswhichStatesandorganizationsmightprovideusefulinformation

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and gives them an opportunity to present written or oral statements. The Court’s advisory procedure is otherwise modeled on that for contentious proceedings, and thesources of applicable law are thesame. In principle the Court’s advisory opinions are consultative in character and as such do not generally result in judgments that aim to resolve specific controversies. Certain instruments or regulations can, however, provide inadvance that theadvisory opinion shall be specifically binding on particular agencies or states.

The advisory opinions of the court are influential and widely respectedthey are inherentlyinterpretationsnon-bindingof theunderlaw, butthetheyStatuteareofnottheauthoritative,Court. and

■AdvisoryofOpinioncases include:oftheInternationalCourtofJusticeontheIsraeli West■Bank Barrier

■Advisory Opinion of the International Court of Justice of 8 July 1996■ or Advisory opinion on the legality of the use (or threat to use) nuclear weapons.

■The International Court of Justice Advisory Opinion on Western Sahara■ or opinion on Western Sahara, issued in 1975.

K.

Read and translate the following text using a dictionary if necessary andcommentonthesubject.

In 1945,Towardsat the Tribunalan Internationalof Nuremberg,Criminalwhich judgedCourtthe accused war criminals of Nazi Germany, the international community pledged that “never again” would it allow monstrous crimes against humanity or genocide to take place. For nearly half a century, the United Nations has recognized the need for a world court to prosecute and punish persons responsible for crimes ofinternational concern, such asgenocide, crimes against humanity, war crimes and the crime of aggression. In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment ofthe Crime of Genocide, one day before adoptingtheUniversalDeclarationofHumanRights.In1949,aDiplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to12August,adoptedfourConventions,whichcodifiedthehumanitarian action of soldiers in times of war. The four Geneva Conventions outlined the humane treatment of wounded, sick or surrendering combatants,

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prisoners and civilians, and banned the wilful taking and killing of hostages. By 1951, these international treaties against genocide, war crimes and crimes against humanity had entered into force, establishing a body of law known as International Humanitarian Law. The United Nations directed the International Law Commission to draft a statute for an International Criminal Court. But for along time disagreement among Member States on the jurisdiction of such a court hindered any decisive development towards its creation.

The atrocities that occurred in the former Yugoslavia and Rwanda were widely seen asfailures of the international community tointervene in time to prevent serious human rights violations. However, Yugoslavia and Rwanda are not unique as conflict areas where massive violations ofhumanrightsandinternationalhumanitarianlawoccurred.Therewere many instances of crimes against humanity committed in war for which no individuals have been held accountable. InCambodia inthe1970s, for example,theKhmerRougekilledover1millionpeople.Inmanycountries around theworld, massacres ofcivilians, including countless women and children, continue to this day.

L.

Read and translate the text. Write a short essay of 150 words about

establishingtheInternationalCriminalCourt.

TheInternationalEstablishingCriminalthe InternationalCourt(ICC)wasCriminalfinallycreatedCourtattheUnited Nations Diplomatic Conference ofPlenipotentiaries on the Establishment of an International Criminal Court, held in Rome from 15 June to 17 July 1998.Delegationsfrom160countries,17intergovernmentalorganizations, 14 United Nations specialized agencies and funds and 124 NGOs participated in the five-week landmark Conference. The Rome Statute oftheInternationalCriminalCourtwasadoptedbyavoteof120infavour to 7 against, with 21 abstentions. Thetreaty establishing the Court needs toberatifiedbyatleast60Statespartiesbeforeenteringintoforce.

The establishment of the Court makes it clear that the international community no longer tolerates violations of human rights without assigning responsibility. Unlike the ad hoc Tribunals, the Court provides a comprehensive mechanism for punishing perpetrators of genocide and other crimes against humanity. The assurance that at least some perpetrators of war crimes, crimes against humanity or genocide may be broughttojusticeactsasasignificantdeterrent,andinitselfmayprovide incentives to end conflicts.

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The ICC forges a missing link in the international legal order, for the International Court of Justice (ICJ) at The Hague handles only cases between States. The ICC will act on the principle of individual responsibility, applied equally and without exception to any individual throughout a governmental hierarchy or military chain of command. The appropriate punishment would apply to heads of State and commanding officers, as well as to low-ranking soldiers in the field or militia recruits. Especially in situations of internal violence, in countries where there is no legitimate Government, ensuring accountability at the international level is crucial.

The Court, comprising the Presidency, a Trial Division, a PreTrial Division, an Appeals Division, the Office of the Prosecutor and the Registry, will be located at The Hague in the Netherlands, but may convene elsewhere if necessary. The Assembly of States parties elects the Court’s Prosecutor and 18 judges for terms limited to nine years, with no two judges of the same nationality. The judges, in turn, elect the President. The Assembly of States parties will define the precise nature of the Court’s relationship with the United Nations at a later stage. The maximum penalty the Court can impose is life imprisonment.

The International Criminal Court will complement national criminal courts, which should normally try alleged criminals within their jurisdiction. The Court is needed only when national institutions have collapsed due to conflict (as in Rwanda) or when a State is unwilling to try its own nationals (as in the former Yugoslavia). The Prosecutor has the power to investigate and bring to justice individuals who commit genocide, crimes against humanity, war crimes and the crime of aggression, once its definition has been finalized.

Since the Nuremberg Tribunal of 1945, the crime of aggression has been recognized as the supreme international offence, a crime against peace which often incites themost serious mass human rights violations, including genocide, war crimes and crimes against humanity. Thestatute of the International Criminal Court provides for criminal responsibility for the crime of aggression, which is generally understood to comprise planning, preparing, ordering, initiating or carrying out an armed attack or waging a war of aggression, in violation of international treaties. In such a scenario, only individuals in positions of leadership who order or actively participate in such acts of aggression could incur responsibility.However,thereisstillnoconsensusonadefinitionorlegal precedent for individual criminal responsibility for acts of aggression,

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as opposed to wars of aggression. The crime of aggression will only be part ofthe Court’s jurisdiction after adefinition – sufficiently precise and clear to meet the high level of specificity required of criminal law – has been determined.

Some of the international crimes discussed but not included in the Rome Statute were the illicit traffic in narcotic drugs and substances, terrorism, and crimes against United Nations and associated personnel.Asthereisnounifiedinternationallegalsystemforaddressing the crimes of drug trafficking and terrorism, delegates agreed that these crimes could be more effectively investigated and prosecuted by national authorities under existing international cooperation agreements rather than by the International Criminal Court. This was also the rationale for not including crimes against United Nations personnel, which have been on the rise in recent years. Since 1992, almost 300 civilians have losttheirlivesintheserviceoftheUnitedNations.Militarypeacekeeping personnel are also often the targets of assault, kidnapping and murder. ThisalarmingsituationpromptedtheGeneralAssemblytoadopt,in1994, theConventionontheSafetyofUnitedNationsandAssociatedPersonnel, whichaffirmsindividualcriminalresponsibilityforattacksagainstUnited Nations personnel.

M.

Read the text quickly and try to understand what it is about and what informationisofprimaryimportanceornewtoyou.

Human rights areWhatrightsareinherentHumantoRights?all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations ofGovernments to act in certain ways or torefrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

TheUniveprinciplesal and ofinalienableuniversality of human rights is the cornerstone of international human rights law. This principle, as first emphasized

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the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principleof non-discriminationis complementedbythe principle ofequality,as statedinArticle1of theUniversalDeclarationof Human Rights: “All human beings are born free and equal in dignity and rights.”

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