The concept of the rule of law is important both for the domestic law of States and in international law. In practice, some difficulties arise due to the lack of an accurate definition of its content. There is an opinion that it is easier to refer to this concept than to define its content. The problem is indicated in the documents of the United Nations (UN). The UN General Assembly resolution of 16 September 2005, in the section devoted to the rule of law principle, emphasizes the need for its universal observance and application both in national legal systems and in international law. The documents adopted under the auspices of the UN also highlight an important role played by the International Court of Justice (ICJ) in the implementation of this concept. Uniform and impartial application of law by the court is a reflection of the idea of the rule of law. All the activities of the ICJ as one of the main UN bodies serve to strengthen and promote this concept. By adopting decisions and advisory opinions, the Court contributes to clarifying and strengthening the influence of international law on relations between States. The development of the idea of the rule of law also affects activities of UN bodies, increasing predictability of their activities. In its practice, the ICJ gives it exceptional legitimacy and a broad scope of action, due to which the rule of law contributes to the implementation of the goals and principles of the UN. The Court’s contribution to the promotion of the concept is particularly noticeable in the framework of ongoing activities for the peaceful settlement of international disputes, clarification and dissemination of international law and its application on an equal basis to all subjects.
The rules on the competence of international courts determine the nature of the cases they resolve and the conditions for their admission to proceedings. The possibility composition of the court considers each case individually following the principle of jurisdiction to decide the jurisdiction due to the lack of a clear regulatory framework. Each international court of justice, relying on the international law, is solely competent to resolve doubts as to its own jurisdiction.
This study aims to identify the approach of courts to solving jurisdictional problems in practice. The material for the study includes the cases of international courts, doctrinal comments, and legal positions of prominent researchers of international justice.
The author describes the basic interpretative framework procedure, restraint, activism in the justification, and the lack of personal jurisdiction. Thus, if the international court of justice has no confidence in the existence of competence on the subject of the dispute, it will not take measures to justify it. The brevity of the position on the issue will be due to interpretative restraint. Activism arises when the international court of justice seeks to achieve a procedural result, substantiate the rationality of the result of interpretation or the impossibility of achieving it. Science has not resolved the issue of factors that may affect the limits of interpretation by international courts of their own competence.
When the case is brought before the international criminal court (a tribunal), a court of universal international jurisdiction, the defendant is granted the right to defense. One of its components includes safeguarding of the right to participate in the criminal proceedings initiated against him. In practice, it may be difficult to ensure this safeguard. Thus, even if the accused is properly informed of the case initiated against him, he may ignore the proceedings or refuse to participate in the trial. There may be difficulties in enforcing a restraining measure related to isolation from the society, including cases when the accused is located in a State different from the State of the forum. Even during the proceedings, the accused can be removed from the courtroom for the violation of order, contempt of the court or insulting a participant in the proceedings. Judicial proceedings in the absence of an accused person in international and national law are not treated separately as a special and separate form of proceedings, but rather as a routine procedure with a number of exceptions. The refusal to allocate as an independent proceeding the trial in the absence of the defendant is based on the narrowness of foundations for its use and practice that does not accept the absence of the defendant in criminal proceedings. In these cases, the problem of a fair trial arises in the absence of the person being prosecuted but with respect to his or her rights.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.