Extract
[...] Underlying principles to the material jurisdiction of the ICJ in international law of war The restrictive material jurisdiction is however embedded in underlying principles of public international law and, more narrowly, of international law of war. However, these principles are themselves interpreted restrictively in so far as they protect the status of arbitrator that the Court assumes towards the parties6. Criticizable, this position would neglect the idea that the 'law of nations' is first conceived and existing 'by by the people and for by the people7 », what amounts to acknowledging a broader conception of the materiality of the Court in these matters of the highest importance whenever it is a question of fundamental rights8. [...]
[...] Russian Federation on February This raises a question that touches on the very spirit of the Genocide Convention and, more broadly, public international law: to what extent does the ICJ's decision lay the groundwork for an essentially material jurisprudential analysis of the genocidal question in public international law and, more restrictively, in international humanitarian law? First, the Court's reasoning on the scope of the link between the jurisdiction of the ICJ and legal materiality in international humanitarian law is discussed, while highlighting the underlying criticisms that can be made in this regard. Second, the dissenting opinions of judges who interpret the Court's jurisdiction extensively and do not limit it to strict material jurisdiction in cases related to international human rights law, humanitarian law, and genocidal issues are highlighted and commented on. I. [...]
[...] Des broad interpretative foundations of the material jurisdiction of the Court In the present case, the dissenting judges recall that the interpretative foundations of the material jurisdiction of the Court are deliberately broad in order to prevent such decisions. This is the spirit of the Statute, but also of the Genocide Convention and the treaties concluded between States within the framework of the United Nations that must prevail over the literal letter.9 : the systematic undermining of one of the founding principles of international law according to which "every treaty in force binds the parties and must be executed by them in good faith"10 » under the title of article 26 of the Vienna Convention on the Law of Treaties is simply not taken into account and, by necessity, contravenes the very spirit of international law and the law of war. [...]
[...] Of the general material jurisdiction of the ICJ in public international law The question of the ICJ's jurisdiction is fiercely debated in specialized literature. If the material jurisdiction is assessed 'in relation to the subject matter of the dispute'2 », it is more narrowly determined, for the case of the ICJ, in two sections: the first concerning a material jurisdiction that is easily qualified as 'extensive' and the second determining a material jurisdiction that can be qualified, conversely, as 'restrictive'. The ICJ's extensive material jurisdiction follows the provisions of Articles 36 and 38 of the Statute of the International Court of Justice in the context of procedural questions related to contentious cases3. [...]
[...] Function of the power of States in disputes, the Court would be validated in fact11. Perpetuation of certain habits through the prism of the sociology of law12, this role of the International Court of Justice raises fundamental problems in effectiveness in concrete of international law of war, reproducing at the international scale processes of domination between state parties subject to contentious issues of international law of war13 : what, in the end, has been manifested in the case at hand In its decision, the ICJ limited the scope of the concept of genocide to the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, 'the Genocide Convention') to the extent that 'Ukraine having seized the Court on the basis of the Genocide Convention, only that Convention determines the material scope of the Court's jurisdiction', as recalled by Judge ad hoc Daudet. [...]
