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Begin New Search Author Alexander Orakhelashvili Publication Year within 25 Years

1. Peremptory Norms of the International Community: A Reply to William E. Conklin

Author:
Alexander Orakhelashvili
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
Professor Conklin's analytical effort to explain the nature of jus cogens is not only highly impressive, but also very timely. It demonstrates the continuing relevance of jus cogens as it increasingly arises in multiple areas of international law, regardless of doctrinal calls from the 1980s onwards that it should have faded away. Since then, there have been those who have suggested that jus cogens does not make sense and should be abandoned, those who suggest that jus cogens has merely aspirational relevance and does not make a difference on the ground, and those who argue that jus cogens is merely 'primary' law, not to be applied in the area of enforcement. What happens interestingly – and problematically – is that doctrinal debates on the conceptual rationale of jus cogens and on its more specific effects are often pursued separately. Conklin's contribution is a gentle reminder of the crucial issues of the background and essence of jus cogens that both writers and practitioners often tend to overlook when addressing the implications of jus cogens in specific areas of international law.

2. Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah

Author:
Alexander Orakhelashvili
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
The present contribution will not provide yet another analysis of the law of immunities in relation to international crimes; this has been done elsewhere. It is instead a response to certain views put forward by Dapo Akande and Sangeeta Shah. Akande and Shah disagree with my own conclusion that jus cogens can, and does, prevail over state immunity. They however advance an alternative approach favouring the denial of immunity, and their conclusion as to the lifting of immunity in civil proceedings manifests that the disagreement is not as wide as it could seem. The aim of this contribution is to clarify whether, in attacking my views, Akande and Shah have moved the debate forward, or made an original case against the primacy of jus cogens. The following analysis will demonstrate that these objections to the primacy of jus cogens over immunities rely only on factors and evidence that support the conclusions reached in that contribution, disregard the evidence that would stand in their way, and ascribe to some authorities the impact they have never been intended to produce.
Topic:
International Relations

3. Unilateral Interpretation of Security Council Resolutions: UK Practice

Author:
Alexander Orakhelashvili
Publication Date:
12-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Unilateral interpretation of UN Security Council resolutions takes place where, due to political considerations of the day, one or more States attempt construing the resolution in question as falling short of, or exceeding, the agreement between the Council's Member States that the resolution on its face suggests. Whether unilateral interpretation indeed takes place depends on what the content of the resolution actually is, which question in its turn depends on the use of transparent methods of interpretation applicable to resolutions. After examining the applicability of the 1969 Vienna Convention in this process, the article turns to four instances of unilateral interpretation from the UK practice, and to reactions to the attempts of unilateral interpretation. These four instances demonstrate that the consistent use of interpretation methods, coupled with the reaction by other States to that effect, can help maintaining the adherence to the resolution's meaning. Where the national or international courts are available as forums to challenge unilateral interpretation, they can further enhance the maintenance of proper meaning of these instruments.
Topic:
Security and United Nations
Political Geography:
United Kingdom and Vienna

4. The United Nations Convention Against Torture. A Commentary • Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article

Author:
Alexander Orakhelashvili
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
It is indisputable that the fight against impunity for the perpetrators of serious international crimes is a fundamental policy of the international community. As the International Court of Justice emphasized in the Arrest Warrant case, the functionally and temporarily limited immunity of the foreign minister of the Congo was not the same as according impunity to that official, because the number of ways of prosecuting him remained intact ( Arrest Warrant of 11 April 2000, Merits, General List No. 121, 14 February 2002, paras 60 – 61). The efforts to combat impunity for the perpetrators of serious crimes are conducted by two methods. The first method relates to establishing international tribunals, which has been the case since the Nuremberg and Tokyo Tribunals in the aftermath of World War II. This method is limited, because international tribunals necessarily have limited jurisdiction. They cannot address the problems of impunity in general, but only those aspects of it which are covered by their mandate as specified in their statutes. Even if this mandate is quite general, as is the case with the International Criminal Court (ICC), the actual extent to which impunity will be combatted still depends on the voluntary decision of states to become party to the Statute. The second method reflects the limited nature of international criminal tribunals. The remaining problems of impunity are addressed through the exercise of jurisdiction by national courts. This is reflected in the fact that the multiplication of international criminal tribunals over the past 15 years has not caused any decline in the activities of national courts in this field. Quite the contrary; the growth of international criminal jurisdiction has been accompanied by the equally remarkable growth of national criminal jurisdiction to address international crimes, including those committed extraterritorially.
Topic:
United Nations and War
Political Geography:
Democratic Republic of the Congo and Tokyo

5. The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?

Author:
Alexander Orakhelashvili
Publication Date:
02-2008
Content Type:
Journal Article
Abstract:
The principal question in terms of assessing the interaction between human rights applicable both in peacetime and war and humanitarian law applicable only to armed conflicts is whether the protection accorded to individuals under the latter is lower than that under the former. The clarification of this question requires the accurate assessment of the available evidence, and not the preconceived approach that tends to conceive one of these two fields as lex specialis that excludes or curtails the protection under the other field. This contribution examines the various aspects of this problem, such as the general interaction between human rights law and humanitarian law, and the relevance of particular human rights in the context of armed conflicts. The evidence dealt with in the course of this analysis exposes the fallacy of the argument that the humanitarian law protection may be lower than that under human rights law.
Topic:
Human Rights and Humanitarian Aid

6. State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong

Author:
Alexander Orakhelashvili
Publication Date:
11-2007
Content Type:
Journal Article
Abstract:
The proper way of addressing the impact of normative hierarchy on state immunity is to adopt the normative-evidentiary approach cleansed of preconceptions motivated by certain risk factors that possess only theoretical significance. The European Court stated in Al-Adsani on the hierarchy of norms issue without properly examining most of its crucial aspects. The Joint Dissenting Opinion of six judges has exposed the weaknesses in the Court's reasoning. Still, some national courts, especially the House of Lords in Jones v. Saudi Arabia, have taken the Al-Adsani ruling as axiomatic, and accepted its outcome without enquiring into whether the line of reasoning the European Court had pursued was consistent or supported with evidence. The outcome is an unfortunate thread of judicial decisions, which do not properly examine the impact of the hierarchy of norms on State immunity, and consistently uphold the impunity of the perpetrators of torture as well as the denial to victims of the only available remedy.
Political Geography:
Europe and Saudi Arabia