Lawmaking by the International Court of Justice—Factors of Success

2011 ◽  
Vol 12 (5) ◽  
pp. 1295-1316 ◽  
Author(s):  
Niels Petersen
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Evolution And Development ◽  
Legal Provisions ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Setting ◽  
Legal Concepts ◽  
Norm Evolution

The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate. It is an open secret, though, that courts are not merely Montesquieu'sbouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction. Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena. This contribution will deal specifically with lawmaking by the International Court of Justice (ICJ).

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.

The South-West Africa Case, the New Nations, and International Law

1966 ◽  
Vol 4 (3) ◽  
pp. 375-380
Author(s):  
Sol Picciotto
Keyword(s):  
West Africa ◽  
International Law ◽  
The South ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
South West ◽  
International Court ◽  
South West Africa ◽  
Proper Analysis

The judgment of the International Court of Justice of 18 July 1966 in the South-West Africa case throws revealing light on the role of that Court in the international community. A proper analysis of this case may also help to dispel some of the mystification about international law and the attitude of the new nations to it.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

Citing Religious Texts in Individual Opinions to Judgments of the International Court of Justice

2020 ◽  
pp. 263-279
Author(s):  
Mubarak A Waseem
Keyword(s):  
Religious Identity ◽  
Central Question ◽  
International Court Of Justice ◽  
Religious Texts ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order ◽  
The Icj ◽  
Legal Concepts

This chapter explores, through a survey of individual Separate and Dissenting Opinions, the treatment of religious texts within the International Court of Justice (ICJ) and provides an argument for their continued usage. In order to maintain its legitimacy, the ICJ is under an obligation to serve the international community and its principles, in all their variety. International law is already, at least in part, based on natural law as reflected in religious texts. The answer to the central question, whether the Court’s judges should be more willing or more hesitant to express their own identity through citing religious texts, depends on one’s view of the role of the Court. If we view the ICJ as a quasi-arbitral forum for the clinical resolution of disputes, the answer to this question is probably negative. But this chapter argues that the Court ought to be viewed as an apex forum for a truly international legal order, one that is geographically, religiously, and culturally diverse, and whose legal concepts are the result of long and storied histories, and as such, the expression of religious identity has a place in the corpus of the living law.

Sign in / Sign up

Export Citation Format

Share Document