RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

2021 ◽  
pp. 1-32
Author(s):  
Salvatore Caserta ◽  
Pola Cebulak
Keyword(s):  
European Union ◽  
International Law ◽  
Land Rights ◽  
Analytical Framework ◽  
The European Union ◽  
International Courts ◽  
Court Of Justice ◽  
Indigenous Groups ◽  
The Caribbean ◽  
Caribbean Court Of Justice

Abstract International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

Regional Integration through Law and International Courts – the Interplay between De Jure and De Facto Supranationality in Central America and the Caribbean

2017 ◽  
Vol 30 (3) ◽  
pp. 579-601 ◽  
Author(s):  
SALVATORE CASERTA
Keyword(s):  
Regional Integration ◽  
Central American ◽  
The European Union ◽  
International Courts ◽  
Caribbean Community ◽  
Theoretical Approaches ◽  
Court Of Justice ◽  
Societal Actors ◽  
The Caribbean ◽  
Caribbean Court Of Justice

AbstractThe article proposes an innovative theoretical framework outlining preconditions for Regional International Courts (RICs) to act as engines of supranationality in different institutional and socio-political contexts. In so doing, the article nuances the theoretical approaches to supranationality and supranational adjudication. The article focuses on the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ). Both courts have been branded institutional copies of the Court of Justice of the European Union (CJEU); they have even borrowed key jurisprudential principles from the Luxembourg Court with the goal of expanding the reach of Central American and Caribbean Community Laws. Yet, both the CACJ and the CCJ have thus far failed to foster supranationality in their respective systems. This is because the conditions allowing RICs to become engines of integration lie, for the most part, beyond the direct control of the judges, most notably, with other institutional, political, and societal actors, such as national judges, regional organs, legal and political elites, as well as academics. The article thus suggests that RICs can become engines of supranationality only to the extent to which they are supported by a set of institutional, political, and societal pre-conditions allowing for the concrete enforcement of the rulings of the RIC at the regional and national levels.

scholarly journals The Phenomena of Fragmentation in the Legal Relations between the Council of Europe and the European Union

2020 ◽  
Author(s):  
Viktoriya Kuzma
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Continent ◽  
Court Of Justice ◽  
European Court ◽  
The Law

This article presents the current issues in the law of international organizations and contemporary international law in general. It is pointed out that the division of international law into branches and institutions, in order to ensure the effective legal regulation of new spheres of relations, led to the emergence of autonomous legal regimes, even within one region, namely on the European continent. To date, these include European Union law and Council of Europe law. It is emphasized the features of the established legal relations between the Council of Europe and the European Union at the present stage. It is determined that, along with close cooperation between regional organizations, there is a phenomenon of fragmentation, which is accompanied by the creation of two legal regimes within the same regional subsystem, proliferation of the international legal norms, institutions, spheres and conflicts of jurisdiction between the European Court of Human Rights and the Court of Justice of the European Union. It is revealed that some aspects of fragmentation can be observed from the moment of establishing relations between the Council of Europe and the European Union, up to the modern dynamics of the functioning of the system of law of international organizations, the law of international treaties, law of human rights. Areas and types of fragmentation in relations between international intergovernmental organizations of the European continent are distinguished. One way to overcome the consequences of fragmentation in the field of human rights is highlighted, namely through the accession of the European Union to the Convention on Human Rights and Fundamental Freedoms 1950. Considerable attention has also been paid to defragmentation, which is partly reflected in the participation of the European Union in the Council of Europe’s conventions by the applying «disconnection clause». It is determined that the legal relations established between an international intergovernmental organization of the traditional type and the integration association sui generis, the CoE and the EU, but with the presence of phenomenon of fragmentation in a close strategic partnership, do not diminish their joint contribution into the development of the law of international organizations and contemporary international law in general. Key words: defragmentation; European Union; European Court of Human Rights; Convention on Human Rights and Fundamental Freedoms 1950; conflict of jurisdictions; «disconnection clause»; Council of Europe; Court of Justice of the European Union; fragmentation; sui generis.

scholarly journals The role of international courts’ decisions in the system of sources of international financial law

2021 ◽  
pp. 254-272
Author(s):  
O. Vaitsekhovska ◽  
O. Chepel
Keyword(s):  
International Law ◽  
Customary Law ◽  
The European Union ◽  
Current Case ◽  
Financial Flows ◽  
International Courts ◽  
Judicial Practice ◽  
Court Of Justice ◽  
Legal Nature ◽  
Financial Issues

The paper deals with the analysis of the legal nature of international courts’ decisions and their impact on the international financial legal order. The author claims that decisions of international courts, creating no new international legal financial norms, act as an additional source of international financial law, having no autonomy, and in combination with other sources of international law, performs the following functions: 1) regulatory-prescriptive (via opinio juris of existing traditions in interstate practice in the financial sphere transforming them into international customary law); 2) regulatory-affirming (confirming the legal nature of the international agreement between the subjects of international financial legal relations which caused a disputable situation). The judicial practice on financial issues and specificity of functioning of such judicial institutions as the Permanent Court of International Justice, the International Court of Justice, the CIS Economic Court, the Court of Justice of the European Union, the Court of Justice of the Central African Economic and Monetary Community, etc. are examined. The features of the provisions of international agreements on financial issues regarding the procedure for resolving disputes between the parties of the agreement about its implementation are analyzed. The paper explores particularities of the origin and development of the idea of the creation of an international financial court. Amid modern processes of the rapid growth of the amount of cross-border financial flows in the context of globalization, which is the consequence of the implementation of numerous international financial agreements, the idea of creation of an international financial court, which was first suggested in 1935, due to the complexity of legal nature of interstate financial disputes, is an objective necessity. The following features intrinsic to decisions of international courts (including decisions on financial issues) have been identified: 1) locality (binding only on the parties involved in the case, and only in the current case); 2) situatedness and unprompted appearance; 3) impartiality (due to the judges’ lack of political interest); 4) authority (international courts include generally recognized experts in international law).

The Global Community Yearbook of International Law and Jurisprudence 2018

2019 ◽  
Keyword(s):  
European Union ◽  
International Law ◽  
Dispute Settlement ◽  
Criminal Court ◽  
Original Research ◽  
The European Union ◽  
Global Community ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
Global Law

The 2018 edition of The Global Community Yearbook of International Law and Jurisprudence both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the Tribunal for the Former Yugoslavia, to economically based tribunals such as ICSID and the WTO Dispute settlement procedures. The contents of this part have been enriched with the inclusion of a new section devoted to the Permanent Court of Arbitration (PCA), the oldest global institution for the settlement of international disputes. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: whether the Paris Declaration of 2017 and the Oslo Recommendation of 2018 deals with enhancing their institutions’ legitimacy; how to reconcile human rights, trade law, intellectual property, investment and health law with the WTO dispute settlement panel upholding Australia’s tobacco plain packaging measure; Israel’s acceptance of Palestinian statehood contingent upon prior Palestinian “demilitarization” is potentially contrary to pertinent international law; and a proposal to strengthen cooperation between the ECJ and National Courts in light of the failure of the dialogue between the ECJ and the Italian Constitutional Court on the interpretation of Article 325 of the Treaty on the Functioning of the European union. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.

Sources of law

2018 ◽  
Author(s):  
Winfried Tilmann
Keyword(s):  
European Union ◽  
International Law ◽  
Judicial System ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
International Court ◽  
Judicial Systems

Union law is mentioned in the first position in lit a of para 1. When is the UPC required to apply Union law? The UPC was established by the UPCA which is a piece of international law and is not part of Union law. That makes the UPC an international court. However, the Member States established it—at the level of international law—as a court common to them which, pursuant to Arts 1(2) and 21 UPCA, is part of their respective national judicial systems. As part of the judicial system (Art 21 UPCA) of the CMSs—by an order under international law—and by reason of an express provision in Art 20 UPCA, the Court fulfils the obligation of the CMSs to apply Union law. Since the Court is a ‘court common to a number of Member States’, ‘it is situated within the judicial system of the European Union’, which is why ‘its decisions’ are subject to ‘mechanisms capable of ensuring the full effectiveness of Union law’. This wording—used in Opinion C-1/09 of the Court of Justice with reference to the Benelux Court of Justice—is also appropriate with reference to the UPC. Although it is integrated into the judicial systems of the Member States in a different way compared with the Benelux Court of Justice, it is a ‘court common to the Member States’, and it is only based on that connecting factor that the Benelux Court of Justice is ‘situated within the judicial system of the European Union’. The ‘mechanisms capable’ are expressly confirmed in Arts 21–23 UPCA.

Part II Historical and Legal Sources, Ch.8 General Principles and Constitutions as Sources of Human Rights Law

2013 ◽  
Author(s):  
O’Boyle Michael ◽  
Lafferty Michelle
Keyword(s):  
European Union ◽  
Human Rights ◽  
The European Union ◽  
Human Rights Law ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
General Principles Of Law ◽  
Human Rights Standards

This article examines influence of general principles of law and constitutions in the formulation of human rights standards and in their interpretation and application by international courts, particularly the Universal Declaration of Human Rights (UDHR). It describes and compares the application and interpretation of human rights by the International Court of Justice (ICJ), the European and Inter-American Courts of Human Rights, and the Court of Justice of the European Union (CJEU). This article also highlights the fact that majority of human rights instruments and provisions subsequently adopted at the national and international levels have built upon the guarantees elaborated by the UDHR.

scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

The Western Sahara Cases before the Court of Justice of the European Union and International Law

2019 ◽  
Vol 18 (2) ◽  
pp. 327-352
Author(s):  
Balingene Kahombo
Keyword(s):  
European Union ◽  
International Law ◽  
Vienna Convention ◽  
International Human Rights Law ◽  
The European Union ◽  
Western Sahara ◽  
Court Of Justice ◽  
The Law ◽  
The Eu

Abstract This paper reviews the relevance of the Western Sahara cases brought before the Court of Justice of the European Union to international law. These cases relate to the contestations of the consistency of a number of economic agreements concluded between the European Union (EU) and the Kingdom of Morocco, as well as the EU acts that approved them, with the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The issues arising from these disputes include the legality of the Court’s jurisdiction to review the validity of a treaty which is already in force between parties and the rules of international law that the contested legal instruments have violated, perhaps entailing their invalidity under EU law. While the Court has rightly found that none of the aforementioned agreements is applicable to Western Sahara—since their territorial scope does not extend to a territory which is not subject to Moroccan sovereignty——this paper tries to answer a different question as to whether the Court’s decisions are in line with international law. It is demonstrated that though the Court’s competence to rule on the validity of EU unilateral acts is obvious, the establishment of its power to review the validity of a treaty which is in force, such as the fisheries agreement of 2006, is dubious because of the inconsistency of such power with the Vienna Convention on the Law of Treaties. In any event, the question which remains to be solved—and which was not submitted to the Court—pertains to the determination of the effects of the illegal application of the EU-Morocco agreements to Western Sahara on the rights of its people. It is concluded that such an application has violated the law of occupation and eventually international human rights law. These violations do not touch upon the validity of the contested legal instruments but relate to the question of responsibility for a wrongful act stemming from the illegal application of those agreements to occupied Western Sahara in a manner which is harmful to the interest of its people.

Show Me the Money: Enforcing Original Jurisdiction Judgments of the Caribbean Court of Justice

2016 ◽  
Vol 29 (1) ◽  
pp. 113-135 ◽  
Author(s):  
RIA MOHAMMED-DAVIDSON
Keyword(s):  
New York ◽  
Common Law ◽  
Single Market ◽  
The State ◽  
International Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
The Caribbean ◽  
Caribbean Court Of Justice ◽  
New York Convention

AbstractThis article examines the challenges surrounding the enforcement of decisions of international courts, using the Caribbean Court of Justice (CCJ) as the fulcrum of the analysis. When sitting in its original jurisdiction, the CCJ adjudicates claims arising from the Revised Treaty of Chaguaramas and the operation of the Caribbean Single Market and Economy. However, there is no clear route for the enforcement of original jurisdiction decisions. The Agreement Establishing the CCJ leaves the issue of enforcement to the states themselves, who in turn have either failed to enact enforcement legislation or have provided for enforcement to be carried out ‘in like manner’ as the decisions of domestic courts. This phraseology raises the spectre of the Crown Proceedings Act and its legislative progeny which bar the pursuit of enforcement proceedings against the state. Several solutions to this enforcement conundrum are discussed, ranging from a regional enforcement treaty, akin to the New York Convention, to enforcement at common law using the Fick case, with the merits and demerits of each examined in turn.

scholarly journals Council of the European Union v. Front Populaire pour la Libération de la Saguia-El-Hamra et Du Rio de Oro (Front Polisario)

2017 ◽  
Vol 111 (3) ◽  
pp. 731-738 ◽  
Author(s):  
Jed Odermatt
Keyword(s):  
European Union ◽  
International Law ◽  
Agricultural Products ◽  
Self Determination ◽  
The European Union ◽  
Western Sahara ◽  
Court Of Justice ◽  
The Law ◽  
Grand Chamber ◽  
The Eu

On December 21, 2016, the Grand Chamber of the Court of Justice of the European Union (CJEU) dismissed an action brought by the Front Polisario challenging a decision of the Council of the European Union (EU) approving the conclusion of an agreement between the European Union and the Kingdom Morocco on the reciprocal liberalization of certain agricultural products. The CJEU held, based on the relevant rules of international law applicable between the EU and Morocco, that the agreement did not apply to the territory of Western Sahara. Apart from its obvious political overtones, the judgment is significant in further developing the CJEU's approach to the law of treaties and the principle of self-determination in international law.

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