Implementing International Law - The Role of Domestic Courts: Some Reflections on the United States Experience

1990 ◽  
Vol 3 (3) ◽  
pp. 67-76 ◽  
Author(s):  
Richard Falk
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
The United States ◽  
Third Party ◽  
International Court Of Justice ◽  
International Court ◽  
Domestic Courts ◽  
Legal Duty ◽  
States Experience

There are, of course, a variety of arenas available for the implementation and expansion of international law. The UN Decade on International Law provides a natural occasion for assessing their relative utility at this stage of international relations. Often the emphasis is placed on procedural steps that encourage states to use judicial arenas for third-party application of international law. In this regard great attention is given to the encouragement of steps towards the formal acceptance by governments of the compulsory jurisdiction of the International Court of Justice, and to the insertion in treaties of compromissory clauses and dispute settlement procedures that entail a legal duty to resolve conflict through the impartial application of international law, and the related obligation to respect the outcome of such an agreed process. For major disputes between states such an app roach to the application of international law remains highly desirable, and needs to be encouraged in every possible way. Extending the domain of compulsory jurisdiction to address both disputes of regionaland inter-regional scope also tends to extend the protection of international law to weaker and more vulnerable states, especially if a stronger tradition of compliance can be established.

The Juridical Expression of the Sacred Trust of Civilization (1971)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
South Africa ◽  
International Law ◽  
The United States ◽  
Critical Discussion ◽  
Second Phase ◽  
International Court Of Justice ◽  
International Court ◽  
South West Africa ◽  
Mandate System

This chapter examines the principle of the sacred trust of civilization in nineteenth-century international law. The establishment of the principle of the sacred trust of civilization is strictly connected with the transfer by the African communities of their territory, their sovereignty, and their destiny to the European Powers, which, through the relevant transactions, assumed the role of guardians of these communities. The chapter looks at the International Court of Justice’s decision in the second phase of the South West Africa Cases (Ethiopia v. South Africa and Liberia v. South Africa) on 18 July 1966. It also considers participation by the United States in the Berlin Conference of 1884–1885. Such an examination enables a critical discussion of the restrictive view expressed by the International Court of Justice to the effect that the mandate system is the sole juridical expression of the principle.

Dispute Settlement in International Law

2014 ◽  
Author(s):  
Loris Marotti ◽  
Paolo Palchetti
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Third Party ◽  
Basic Principles ◽  
Interstate Disputes ◽  
International Dispute ◽  
Legal Duty ◽  
Recent Trends

The basic principles and methods governing the settlement of international disputes today—particularly interstate disputes—are substantially the same as those that were identified and enshrined in the Charter of the United Nations in 1945. Parties to a dispute are under a duty to settle it in a peaceful way (Article 2, paragraph 3 of the UN Charter). While barred from resorting to armed force, the parties remain however, at least in principle, “masters” of the procedure for dispute settlement, and of the outcome. In the absence of a precise treaty obligation, they are free to decide the particular means of dispute settlement they prefer (Article 33 of the UN Charter). More broadly, any settlement will inevitably depend, directly or indirectly, on the agreement of the parties. Thus, the whole edifice of dispute settlement at the international level is characterized by an inherent tension between a legal duty to settle disputes in a peaceful way and the absence of any real compulsory mechanism that may render such obligation effective. Against this legal background, the notion of dispute settlement covers a great variety of different settlement devices. Such procedures can be distinguished one from the other on the basis of different criteria, such as whether they contemplate the intervention of a third party, whether the settlement is based on the application of rules of international law, or whether the final outcome of the procedure has a binding or nonbinding character. The classification of these different procedures; the identification of their respective merits and shortcomings, in absolute or comparative terms; their suitability in relation to different categories of disputes—these are all issues that have been traditionally the object of a vast body of literature. On a broader perspective, recent trends, which have brought some changes in the field of the international dispute settlement, have also attracted the attention of doctrine. These trends include the progressive institutionalization of the procedures, thanks also to the growing role of international organizations in this area, the multiplication of settlement mechanisms and the ensuing problem of the possible interaction or conflict between them, the creation of new courts and tribunals, and the rise of adjudication as a means of dispute settlement.

Progress in International Maritime Boundary Delimitation Law

1994 ◽  
Vol 88 (2) ◽  
pp. 227-256 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Third Party ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Boundary Disputes ◽  
International Court ◽  
Maritime Boundary ◽  
Maritime Boundary Delimitation

Judgments of the International Court of Justice (ICJ) and awards of ad hoc arbitration tribunals carry special weight in international maritime boundary law. On its face, the international maritime boundary law codified in the 1982 Convention on the Law of the Sea is indeterminate. For the continental shelf and the exclusive economic zone, the legal obligation of coastal states is to delimit the boundary “by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” The article on the delimitation of maritime boundaries in the territorial sea is no more determinative despite the fact that it makes direct references to the equidistant line, special circumstances and historic title. In spite of this indeterminacy, if not because of it, coastal states have found that third-party dispute settlement procedures can effectively resolve maritime boundary delimitation disputes. As a consequence, there are more judgments and awards on maritime boundary disputes than on any other subject of international law, and this trend is continuing.

I

1986 ◽  
Vol 80 (4) ◽  
pp. 896-901 ◽  
Author(s):  
Manfred Lachs
Keyword(s):  
International Law ◽  
The United States ◽  
Second World War ◽  
World War ◽  
International Court Of Justice ◽  
International Court ◽  
History Of ◽  
American Society ◽  
Second World ◽  
Shed Light

To write of Philip Jessup means to survey the history of the teaching of international law in the United States throughout the last half century; to cover all important events concerning the birth of international organizations on the morrow of the Second World War; to visit the halls of the General Assembly and the Security Council; to attend meetings of the American Society of International Law and the Institute of International Law, where he so frequently took the floor to shed light on their debates; to attend sittings of the International Court of Justice in the years 1960-1969. I could hardly undertake this task; there are others much more qualified to do so. What I wish to do is to recall him as a great jurist I knew and a delightful human being; in short, a judge and a great friend whom I learned to admire.

Global Regulatory Standards in Environmental and Health Disputes

2021 ◽  
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Advisory competence on international law of the International Court of Justice: theoretical and practical issues

2021 ◽  
pp. 136-145
Author(s):  
Huu Phuoc Him ◽  
Thi Kim Kook Nguyen
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

This article analyses, clarifi es the theoretical and practical issues of the advisory capacity of the International Court of Justice. Thereby, highlighting the role of the International Court of Justice in the development compliance and enforcement of international law from 1945 to now. Keywords: Jurisdiction, advisory opinion, International Court of Justice, international law.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

The International Court of Justice During the Battle for International Law (1955–1975)

2019 ◽  
pp. 235-256
Author(s):  
Ingo Venzke
Keyword(s):  
West Africa ◽  
International Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Independent States ◽  
South West Africa ◽  
Newly Independent States

This chapter investigates the role of the International Court of Justice (ICJ) during the battle for international law circa the years of 1955–1975. It first draws attention to newly independent states that saw the Court in its role of reinforcing international law’s colonial imprints. The chapter then focuses on the Court’s captivating highpoint during the battle for international law: its 1962 and 1966 Judgments in South West Africa, and the jarring 1966 decision which, in the eyes of many states, presented the ICJ as a ‘white man’s court’ in a white man’s world. The chapter then shows the effects of the 1966 decision in judicial elections and the quest to change the composition of the bench. Finally, the chapter argues that the present inquiry serves as a vivid reminder that international law and its institutions are the product of a veritable struggle, then as now.

scholarly journals Ius in Bello under Islamic International Law

2013 ◽  
Vol 13 (3) ◽  
pp. 593-625 ◽  
Author(s):  
Mohamed Elewa Badar
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Eighth Century ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
Hugo Grotius ◽  
Law Of Nations

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

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