Expanding the Competence to Issue Provisional Measures— Strengthening the International Judicial Function

2011 ◽  
Vol 12 (5) ◽  
pp. 1279-1294
Author(s):  
Karin Oellers-Frahm
Keyword(s):  
International Law ◽  
National Level ◽  
Organizational Status ◽  
International Courts ◽  
State Practice ◽  
Normative Expectations ◽  
The Subject ◽  
Judicial Procedures ◽  
Settlement Of Disputes ◽  
Holistic Vision

In international law, jurisdiction serves the same principal aim as in national law, namely the settlement of disputes in order to maintain (legal) peace and security. In international law, as in national law, judicial procedures take time, sometimes a lot of time, during which the rights at stake may be negatively affected by acts of one of the parties potentially resulting in an ineffective judgment. A remedy against such an occurrence has been developed through an instrument of interim protection by which the court directs the parties to leave the rights as they stand and not to interfere with the situation. Such an instrument appears indispensable in order to ensure that a court or tribunal is able to effectively exercise its function. At the national level, interim protection is usually unproblematic since the competence of the tribunals is mostly comprehensive. In international law, in contrast, the competence of judicial organs is one of the most discussed problems because it depends on the consent of states. Any expansion of competence without an explicit agreement of the states concerned is therefore of utmost significance for the role and the acceptance of international courts and reflects the organizational status of international society. Thus, in the context of the project “Beyond Dispute: Lawmaking by International Judicial Institutions,” the subject-matter of this contribution mostly relates to the role and self-understanding of international judicial organs; it is less concerned with the creation of substantive normative expectations between international subjects. Yet, the expansion of judicial competences fits into the conceptual apparatus of this research as it innovates the legal order and reaches beyond the case at hand. The case of provisional measures provides a particularly fine example of incremental judicial law making through progressive interpretation, supported by a holistic vision of the international judiciary, reciprocal strengthening and later state practice, as well as its functional legitimation and its limits.

A STEP TOO FAR? THE JOURNEY FROM “BIOLOGICAL” TO “SOCIETAL” FILIATION IN THE CHILD'S RIGHT TO NAME AND IDENTITY IN ISLAMIC AND INTERNATIONAL LAW

2019 ◽  
Vol 34 (3) ◽  
pp. 383-407 ◽  
Author(s):  
Shaheen Sardar Ali
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Legal Traditions ◽  
Rights Of The Child ◽  
State Practice ◽  
Legal Position ◽  
The Subject ◽  
Rights Discourse ◽  
Muslim Communities ◽  
Human Rights Discourse

AbstractThis socio-legal narrative investigates the journey from “biological” to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity. Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, it highlights a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. It questions whether evolving conceptions of a child's rights to name and identity represent a paradigm shift from “no status” if born out of wedlock toward “full status” offered through national and international law and Muslim state and community practices. The article challenges the dominant (formal, legal) position within the Islamic legal traditions that nasab (filiation) is obtainable through marriage alone. Highlighting inherent plurality within the Islamic legal traditions, it demonstrates how Muslim state practice and actual practices of Muslim communities on the subject are neither uniform nor necessarily in accordance with stated doctrinal positions of the juristic schools to which they subscribe. Simultaneously, the paper challenges some exaggerated gaps between “Islamic” and “Western” conceptions of children's rights, arguing that child-centric resources in Islamic law tend to be suppressed by a “universalist” Western human-rights discourse. Tracing common threads through discourses within both legal traditions aimed at ensuring children a name and identity, it demonstrates that the rights values in the United Nations Convention on Rights of the Child resonate with preexisting values within the Islamic legal traditions.

International Law and Colombian Constitutionalism: A Note on Monism

1942 ◽  
Vol 36 (4) ◽  
pp. 614-620
Author(s):  
William Marion Gibson
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Subject Matter ◽  
The Other ◽  
Legal Philosophy ◽  
State Practice ◽  
The Subject ◽  
National Constitution ◽  
Relationship Of ◽  
The Relationship

In explaining the nature of international law, each of the two major schools of thought draws upon legal philosophy and practice for evidence in support of its interpretation. It is not the purpose of this note to offer any conclusions or proofs as to the validity of the reasoning of one or the other of the two schools. It would require more than the subject-matter here considered to prove the “Monist” position, or to detract from that of the “Dualist.” However, inasmuch as state practice is one of the guides to the resolution of the debate on the nature of international law, it is hoped that an explanation of the attitude of the Colombian Supreme Court concerning the relationship of pacta to the national constitution and legislation of that state may merit mention.

scholarly journals Good offices: grasping the place of law in conflict

Legal Studies ◽  
2014 ◽  
Vol 34 (3) ◽  
pp. 469-496 ◽  
Author(s):  
Aoife O'Donoghue
Keyword(s):  
International Law ◽  
Past Century ◽  
Legal Analysis ◽  
International Organisations ◽  
The Past ◽  
The Pacific ◽  
The Subject ◽  
Definition Of ◽  
Settlement Of Disputes ◽  
Violent Conflicts

In the pantheon of approaches open to participants in the pacific settlement of disputes, good offices holds a noteworthy place. The evolution of good offices over the past century is concurrent with a trend of considerable transformation within international law, including – amongst other changes – a move away from a state-led legal order, including in good offices following the emergence of the heads of international organisations as its prime users, and a process of legalisation and specialisation within the subject that has entirely altered its character. These changes have led to a redefinition of good offices that stresses the actor carrying out the role above the form that it takes. To accompany these changes in practice, there is a need for a transformation in the legal analysis and definition of good offices. One potential option in achieving this end is Bell'slex pacificatoria. If good offices is to continue to play a significant role in the settlement of violent conflicts, a fully developed legal analysis is necessary to grasp both its historical development and its potential future role.

The Rights and Obligations of States in Disputed Maritime Areas

2021 ◽  
Author(s):  
Youri van Logchem
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Legal Framework ◽  
Comprehensive Treatment ◽  
International Courts ◽  
Judicial Decisions ◽  
Commercial Activities ◽  
State Practice ◽  
The World

Disputed maritime areas exist around the world, and in many cases the affected States have not been able to reach agreement on cooperative arrangements or regulate commercial activities within the area. Where a claimant coastal State increases their level of unilateral activity, such as in the South China Sea, long-standing conflicts remain difficult to resolve. This book examines the rights and obligations States have under international law concerning disputed maritime areas in the first comprehensive treatment of this highly topical and pressing issue. It analyses conventional law, general international law, judicial decisions, State practice and academic opinions that shine light on the international legal framework applicable in disputed maritime areas. Proposing practical solutions for interpreting and applying the applicable international law, the book discusses the extent to which it currently provides clear guidance to States, and how international courts and tribunals have dealt with cases related to disputed maritime areas.

Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 131-149
Author(s):  
Cameron Miles
Keyword(s):  
International Law ◽  
International Courts ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Model Based ◽  
Domestic Courts ◽  
State Practice ◽  
The Icj ◽  
International Adjudication

Article 38(1)(d) of the ICJ Statute provides that “judicial decisions” may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term “judicial decisions” confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission’s Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC’s assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Social Relationships ◽  
Court Decisions ◽  
International Courts ◽  
Customary International Law ◽  
Legal Norms ◽  
State Practice ◽  
Municipal Court ◽  
Domestic Law

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

Equity in Arbitration and in Judicial Settlement of Disputes

1993 ◽  
Vol 6 (2) ◽  
pp. 323-329 ◽  
Author(s):  
Judge Manfred Lachs
Keyword(s):  
International Law ◽  
General Assembly ◽  
Type I ◽  
International Courts ◽  
The Past ◽  
Un General Assembly ◽  
Similarities And Differences ◽  
Settlement Of Disputes ◽  
Recommended Action

Much has been written on the similarities and differences between arbitration tribunals and international courts; much more could and will certainly be written in the future. The purpose of my comments is to define similarities and differences in regard to the role of equity in both. However, I hope to enter the caveat at the very outset that in this paper I will focus solely on the role of equity in cases where the decision is to be based on international law. Accordingly, I will not here discuss cases of the type I had in mind when I pointed out in a speech delivered 34 years ago to the Legal Committee of the UN General Assembly that “[t]he arbitral solution has been applied in the past to a variety of problems, some of which were not judicial in character and did not raise issues of law”. Nor will I now discuss arbitrations in which the parties have agreed that the arbitrators need not be guided by law, or where the arbitral tribunal is expressly authorized by the parties to decide ex aequo et bono and thereby to settle the matter in a liberal spirit without regard to legal requirements and technicalities. Thus, cases in which the arbitrators have been empowered to seek mutual accommodations that would give offense to neither party are outside the scope of this discussion, as are cases where arbitrators recommended action by one of the parties as an act of grace.

scholarly journals Peacekeeping Forces, Jurisdiction and Immunity: A Tribute to George Barton

2012 ◽  
Vol 43 (1) ◽  
pp. 77 ◽  
Author(s):  
Roger S Clark
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Security Council ◽  
Armed Forces ◽  
State Practice ◽  
Peacekeeping Forces ◽  
The Subject ◽  
The United Nations ◽  
Phd Thesis

George Barton wrote his PhD thesis at Cambridge on "Jurisdiction over Visiting Forces". He published three spinoffs from the thesis in the British Yearbook of International Law.  In all of these – each a tour de force in examining elusive and arcane State practice – he was at great pains to deny various supposed customary rules recognising immunity of foreign armed forces in the courts of a State in which they were visiting by consent. He worked in the United Nations Secretariat in New York just as the practice of United Nations peacekeeping began to develop. In this tribute, I try to imagine that he returned to the subject some 60 years later. Affecting, as best I can, the style of Dr Barton circa 1950, I offer some guesses as to how he might assess six decades of developments in law and practice in the multilateral context in which the United Nations, and especially the Secretariat and the Security Council, have been major actors.

The main approaches to the definition of the international courts’ competence

2019 ◽  
Vol 5 (3) ◽  
pp. 128-143 ◽  
Author(s):  
Andrew Yu. Klyuchnikov
Keyword(s):  
International Law ◽  
International Justice ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
The Subject ◽  
Definition Of ◽  
Personal Jurisdiction ◽  
Interpretative Framework

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.

Case Law in Russian Approaches to International Law

2018 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
Case Law ◽  
Main Method ◽  
International Courts ◽  
Russian State ◽  
State Practice ◽  
Structural Differences ◽  
History Of ◽  
History Of International Law ◽  
Distinct Approach

In her comparative study on the use of case law in international law textbooks, Anthea Roberts demonstrates a number of structural differences between textbooks in different countries. This chapter further explores the Russian situation and asks whether Roberts’s comparative findings regarding Russian international law textbooks reflect the dominant approach in Russian international law scholarship, and whether they also reflect a distinct approach in Russian state practice. It then discusses what might explain both Russian scholarly and governmental approaches and, finally, what international lawyers can learn from this practice in the context of comparative international law. Cautiousness about case law and international courts has historically been characteristic of the Russian approach to international law. The main method used in this chapter is a historical one, because only the history of international law and its ideas can teach us how concrete legal-political circumstances in a country have come into being.

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