C.

International Court of Justice

Arts. 92, 93, 94, 96, UN Charter
ART. 92
The ICJ shall be the principal judicial organ of the United Nations. It shall
function in accordance with the annexed Statute, which is based upon the
Statute of Permanent Court of International Justice and forms an integral part
of the present Charter.
Art. 93
1. All Members of the UN are facto parties of the Statute of the ICJ.
2. A state which is not a Member of the UN may become a party to the
Statute of the ICJ on to be determined in each case by the General
Assembly upon the recommendation of the Security Council.
Art. 94
1. Each Member of the UN undertakes to comply with the decision of the
ICJ in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary,
make recommendations or decide upon measures to be taken to gove
effect to the judgment.
Art. 96
1. The General Assembly of the Security Council may request the ICJ to
give an advisory opinion on any legal question.
2. Other organs of the UN and specialized agencies which may at any time
be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their
activities.
Arts. 1, 34(1), 35(1), ICJ Statute
a.

Applicable Law
Arts. 38 & 59, ICJ Statute
Art. 38
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Art 59, judicial decisions and the
teachings of the various decisions and teachings of the most highly
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qualified publicists of the various nations, as subsidiary means for the

determination of law.
2. The provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
Art. 59
The decision of the Court has no binding force except between the
parties and in respect of the particular case.
b. Jurisdiction
Art. 36(1), (2) & (3), ICJ Statute
Art. 36
1. The jurisdiction of the Court comprises all cases which the parties refer to
it and all matters specially provided for in the Charter of the UN or in
treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special agreement,
in relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a
breach of an international obligation;
d. nature or extent of the reparation to be made for the breach of
an international obligation.
3. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a
certain time.
c.

Advisory Opinions

I. International Environmental Law

PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
States have, in accordance with the Charter of the UN and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
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II. International Economic Law

Madrid Protocol and the Paris Convention for the Protection of Industrial Property
A trademark is in principle a purely national affair. Separate trademark registrations must
be made in all the countries in which trademark protection is desired. To ease this situation
somewhat, various international treaties have been established with which multiple trademark
registrations can be obtained through a single procedure. The Netherlands, Belgium and
Luxembourg for example have a single trademark law. Any registrations under this law
automatically results in a trademark that is valid in all three countries.
THE PARIS CONVENTION
The Paris Convention for the Protection of Industrial Property (1883) contains various
important provisions of trademark. The most important one is a priority right. This means
that one can apply for a trademark in one country that is a member to the Paris Convention,
and then within six months file subsequent applications in other member countries and claim
the priority date. The later registrations will the receive the registration date of the first
registration.
Further, trademarks duly registered in the country of origin shall be accepted for filing
and protected as is in the other countries of the Union. The only reasons under which the
trademark offices of the other countries may refuse the registration is when the trademark
infringes rights acquired by third parties in those countries, where the trademark is
devoid of any distinct character, or when the trademark is contrary to morality or
public order or may deceive the public.
Special protection is given to so-called well-known marks. The registration or use of a
trademark which constitutes a reproduction, an imitation, or a translation liable to create
confusion, of a mark considered to be well-known in a country is prohibited. If the holder of
the well-known marks finds that such other mark has been registered, he can request a
cancellation of that registration within 5 years. If the registration of the other marks was
done in bad faith, there is no restriction on the time in which the holder of the famous mark
can request cancellation.
THE MADRID AGREEMENT
The Madrid Agreement concerning the International Registration of Marks (1981) is a
special treaty designed to ease the acquisition of trademark rights in various countries. After
an initial registration in his own country, an applicant for a trademark can make a so-called
international registration at the International Bureau (IB) of the World International
Property Organization (WIPO) in Geneva, indicating the member countries in which he
would like to have trademark protection. The IB then makes the registration and passes it on
to all the designated member countries of the Madrid Agreement. These then have one year in
which to refuse the registration in their country.
The registrations that are a result of the international registration can be annulled if
the original national registration is refused, annulled or dropped in the first five years after
the first registration date. An annulment resulting from a legal action started after the
original registration is more than 5 years old cannot affect international registration. So, if you
want to get rid of an international mark established under the Madrid Agreement, you should
try to get the original national registration annulled by starting a legal procedure to that end
within five years after the first registration. This is known as a central attack on the
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international registration.
MADRID PROTOCOL
The protocol relating to the Madrid Agreement concerning the International Registration
of Marks (1989) contains basically the same provisions as the Madrid Agreement itself. There
are some important differences. The first difference is that not only countries, but also
regions, such as European Community, can be a member. This way, for example a
community Trademark can act as a first registration.
Second, under the Protocol one can ask for the international registration based on
only the application of a trademark, rather than the registration. Registration often
means that the trademark office has to accept the application if this takes more than six
months, it is no longer possible to use the Madrid Agreement to get an international
registration for the trademark.
Third, if the so-called central attack results in the annulment of the original
trademark (or application) the holder of the international registration under the Protocol can
in all of the countries ask for a conversion. The trademarks in question are then converted to
national trademarks and treated as if they were applications filed on the filing date of the
(rejected) national application. This way, the holder of the international registration still has a
chance to get national trademark rights in at least some of these countries.
If the country of origin is a member of both the Agreement and the Protocol, and the
countries in which the international registration should have a fact is also a member of the
Agreement and the Protocol, then the provisions of the Agreement take precedence over the
provisions of the Protocol in these countries.
Foreign Investments & Natural Resources