Resistance to territorial and maritime delimitation judgments of the International Court of Justice and clashes with ‘territory clauses’ in the Constitutions of Latin American states

2021 ◽  
pp. 1-24
Author(s):  
Walter Arévalo Ramírez
Keyword(s):  
Latin America ◽  
International Law ◽  
Latin American ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
National Boundaries ◽  
Domestic Law ◽  
Legal Barriers

Abstract This article analyses the growing resistance to judgments of the International Court of Justice arising out of domestic law in Latin America, through a study of challenges to the authority of the Court’s judgments regarding territorial and maritime delimitation in the region. These challenges are based upon the ‘territory clauses’ found in many Latin American constitutions, which were used to set national boundaries following colonial independence. Territory clauses that once developed international law doctrines such as uti possidetis iuris are now being used against prevailing international law rules, in a process described in this article as ‘constitutional resistance’. This article explains the nature of ‘territory clauses’ in Latin America, i.e., clauses that constitutionally define the national territory in reference to international law. It then describes the process of ‘constitutional resistance’, by which local authorities have used these clauses to oppose ICJ judgments, leading to various results, such as non-appearance in further proceedings, constitutionalizing exclusively favourable judgments, deferring the implementation of a judgment to the Constitutional Court or implementing only certain ICJ judgments, while creating legal barriers to the implementation of judgments that, in the State’s view, negatively affect their territory. These challenges based on territory clauses are studied through prominent ICJ cases involving Nicaragua, Honduras, El Salvador, and Colombia. The article also explores how the lack of a strong territory clause eased the implementation of the Peru v. Chile judgment, and how the recent non-appearance of Venezuela in its current ICJ proceedings with Guyana, is partly based on constitutional justifications.

scholarly journals State Instigation in International Law: A General Principle Transposed

2019 ◽  
Vol 30 (2) ◽  
pp. 391-414
Author(s):  
Miles Jackson
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
General Principle ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Comparative Survey ◽  
International Legal System ◽  
Domestic Law

Abstract It is widely believed that international law imposes no general prohibition on instigation – no general prohibition on states inducing, inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a representative set of domestic jurisdictions for comparative analysis. Second, through a brief comparative survey, I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And, third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.

scholarly journals Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law

2021 ◽  
pp. 337-342
Author(s):  
Andreas L. Paulus
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The 1960S ◽  
The One ◽  
Substantive Law ◽  
Domestic Law

AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.

Jurisdictional Immunities, Constitutional Values, and System Closures

2019 ◽  
pp. 684-699 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
Potential Conflict ◽  
International Court Of Justice ◽  
International Court ◽  
Norms And Values ◽  
Domestic Courts ◽  
And Function ◽  
The Impact ◽  
Domestic Law

This chapter analyzes the invocation of constitutional norms and values to prevent the recognition of the effects of an international judgment in domestic law, against the background of the Italian Constitutional Court decision No. 238 of 2014. The chapter then explores more generally the significance and function of so-called “system closures” effectuated by judicial organs in domestic and international law. While less frequently resorted to by judicial organs than balancing or coordinating techniques in case of potential conflict between legal orders, system closures have become quite common. Although they perform important symbolic functions, domestic legal systems’ closures are detrimental to the role that domestic courts may play in implementing international law. This is why international adjudicators such as the International Court of Justice should give more consideration to the impact of their decisions on domestic legal orders.

The Colombian-Peruvian Asylum Case: The Practice of Diplomatic Asylum

1952 ◽  
Vol 46 (1) ◽  
pp. 142-157 ◽  
Author(s):  
Alona E. Evans
Keyword(s):  
Latin America ◽  
International Law ◽  
Far East ◽  
International Court Of Justice ◽  
Legal Sanction ◽  
Court Of Justice ◽  
American States ◽  
First Case ◽  
International Court ◽  
Long Time

By a turn of legal fate, the first case between two American states to be decided by either the International Court of Justice or its predecessor, the Permanent Court of International Justice, is one which involves the controversial practice of diplomatic asylum. One can choose to regard diplomatic asylum as a principle of American international law or as a “permissive local custom,” though in no sense a principle of international law, or one can agree that “the fact that asylum is not exercised in the territory of the leading states, and is mainly resorted to in the ‘backward’ countries of the Near and Far East and of Latin America, suggests that it is a practice followed only in relation to states who are not fully civilized in the Western sense of the term, and that as such it is a temporary exception to the system of international law which obtains in the community of civilized nations.” Whatever the viewpoint, the fact remains that the practice has been indulged in for a long time, with and without formal legal sanction, and in more places than Latin America. The Colombian-Peruvian Asylum Case brings to attention the issues of the validity in international law of diplomatic asylum and of its desirability in international relations. A short sketch of the origin and development of diplomatic asylum will indicate something of its nature.

Sources and the Legality and Validity of International Law

2018 ◽  
Author(s):  
Pierre d’Argent
Keyword(s):  
International Law ◽  
Legal Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Legal Identification ◽  
Domestic Law ◽  
What Matters

This chapter argues that, from the perspective of a theory about the sources of international law, what matters is not so much to determine whether international law is really law, but, rather, what makes law ‘international’. It first recalls the structural reasons inherent to international law that explain the specificity and the crucial character of the issue of sources—understood as a process of legal identification—in that legal order, as opposed to sources in domestic law. The chapter then contextualizes Article 38 of the International Court of Justice (ICJ) Statute by recalling its specific purpose; that is, determining and delimiting international legality. Finally, the chapter questions whether and to what extent a theory of sources really achieves its objective of determining what unequivocally counts as international law. The chapter thus brings to light the awkward fact that international legality is not necessarily normatively exclusive.

Beyond Compliance: Law-Making through Latin American Cases before the World Court

2017 ◽  
Vol 16 (2) ◽  
pp. 245-263
Author(s):  
Paula Wojcikiewicz Almeida
Keyword(s):  
International Law ◽  
Latin American ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
American States ◽  
International Court ◽  
The World ◽  
Traditional Function ◽  
International Adjudication

Abstract Departing from a contemporary approach to international adjudication, this article aims to evaluate, firstly, the limits of compliance and its residual character when assessing the effectiveness of the International Court of Justice with regards to Latin American states. Secondly, it deals with the importance of going beyond the traditional function of inter-state dispute settlement to assess the contribution of Latin American states to international law through cases submitted to the Court, independently from case-specific compliance. This is because a judgment that has not been complied with may substantially contribute to international law and produce important impacts on domestic authorities. Latin American cases constitute an example of this phenomenon.

Introductory Note

2017 ◽  
Author(s):  
John G. Merrills
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Introductory Note

In 2015 the International Court of Justice (ICJ) gave three judgments and made a number of orders. In various ways this jurisprudence, although modest in extent, contributed to the elucidation of international law on several procedural, as well as substantive matters. In that year no new cases were begun, but one case was discontinued. At the beginning of 2016 there were therefore ten cases on the Court’s docket. The Court’s work in 2015 demonstrates that through its decisions it continues to assist states to resolve their international disputes peacefully and at the same time to contribute to the clarification and development of international law.

Consolidation of Statehood through Membership in the UN: Some Remarks on Kosovo, Democracy and International Law

2018 ◽  
Vol 43 (3) ◽  
pp. 331-349
Author(s):  
Iliriana Islami ◽  
Remzije Istrefi
Keyword(s):  
Foreign Policy ◽  
United Nations ◽  
International Law ◽  
State Building ◽  
Former Yugoslavia ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Building Process

Kosovo declared its independence on 17 February 2008. Subsequently, one of the aims of Kosovo’s foreign policy was to further consolidate this position and to justify Kosovo’s prospective membership in the United Nations. This article examines the issue of recognition, elucidating how Kosovo is different from other countries and comparing it with the case of the former Yugoslavia. Other aspects in the state-building process such as ‘building constitutionalism’ will be presented as a step toward justifying recognition and membership. Furthermore, the Advisory Opinion of the International Court of Justice (ICJ) of 8 October 2008 will be presented as evidence of Kosovo’s strengthening international position in its quest for further recognition. Thus, the article will discuss and analyze the arguments in favor of Kosovo being admitted to the UN.

scholarly journals Remarks by Maria Flores

2018 ◽  
Vol 112 ◽  
pp. 79-82
Author(s):  
Maria Flores
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Global Scale ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
Small Department ◽  
The University

I first became involved with international law while I was at university. After graduating, I decided to teach public international law. As an undergraduate, I particularly enjoyed this branch of study. I was attracted to it because it helped me to understand the problems, challenges, and breakthroughs in the field of international relations on a global scale. Therefore, after facing a competitive entry process, I joined the international law department of the Universidad de la República. It was a small department, but the university had produced some well-known scholars like Eduardo Jiménez de Aréchaga, who became a judge at the International Court of Justice, and Hector Gross Espiell, who served as a judge at the Inter-American Court of Human Rights.

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