The Emergence of a Common Law of International Adjudication against a Background of Proliferation

2007 ◽  
pp. 15-34
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Common Law ◽  
Third Party ◽  
International Courts ◽  
The Past ◽  
The Creation ◽  
Jurisdictional Competition ◽  
International Adjudication ◽  
Fragmentation Of International Law

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

Introduction

2007 ◽  
pp. 1-14
Author(s):  
Chester Brown
Keyword(s):  
Dispute Settlement ◽  
Common Law ◽  
Case Law ◽  
Third Party ◽  
Homogeneous Body ◽  
Short Introduction ◽  
International Courts ◽  
International Dispute ◽  
History Of ◽  
International Adjudication

This chapter gives a short introduction to the history of international dispute settlement by third-party adjudication. It notes that there is a gap in the existing literature, being an examination of procedure and remedies before different international courts, and an answer to the question of whether the same procedural rules obtain, and the same remedies are available, before different international judicial bodies. It presents the book's central thesis — that international courts often adopt common approaches to questions of procedure and remedies, which leads to increasing commonality in the case law of international courts. It then explains that the term ‘common law of international adjudication’ refers to the emergence of an increasingly homogeneous body of rules applied by international courts and tribunals relating to procedure and remedies. It then defines the terms ‘procedure’ and ‘remedies’. It also covers certain selected aspects of international adjudication, and reviews the jurisprudence of certain selected international courts and tribunals.

The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?

2006 ◽  
Vol 19 (1) ◽  
pp. 223-246 ◽  
Author(s):  
NIKOLAOS LAVRANOS
Keyword(s):  
International Law ◽  
Arbitral Tribunal ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
The Creation ◽  
Fragmentation Of International Law ◽  
The Unclos

The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

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.

scholarly journals Independence and Impartiality in The Judicial Trilemma

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 344-348 ◽  
Author(s):  
Helen Keller ◽  
Severin Meier
Keyword(s):  
International Law ◽  
Judicial Independence ◽  
Holistic View ◽  
International Courts ◽  
The Past ◽  
Trade Offs ◽  
Transparency And Accountability ◽  
Judicial Systems

Jeffrey L. Dunoff and Mark A. Pollack's article is an important and very welcome contribution to the discussion about judicial values. The authors argue that with respect to judicial independence, transparency, and accountability “judicial systems face inherent trade-offs, such that any given court can maximize two, but not all three, of these features.” In our eyes, the article's most important contribution is its holistic view: it shows why these three judicial values can only be understood in their interconnectedness. It is, for instance, not meaningful to make a statement about the correlation between transparency and independence without also taking accountability into the equation. This is because the effect of transparency on independence can only be understood if information about judicial accountability is at one's disposal. In the past, these judicial values have often been analyzed in an isolated manner, thereby leading to wrong conclusions. The Judicial Trilemma will hopefully help in shifting the discourse from isolated to holistic views on independence, transparency, and accountability. Moreover, Dunoff and Pollack lay the groundwork for a meaningful normative discussion of these three judicial values. Any debate about how to structure (international) courts should henceforth take Dunoff and Pollack's holistic view as a basis for discussion.

scholarly journals Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 349-353
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Judicial Decision ◽  
International Court Of Justice ◽  
Judicial Decision Making ◽  
International Courts ◽  
Judicial Decisions ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Empirical Social Science

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

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.

un Security Council Resolutions before uk Courts

2016 ◽  
Vol 19 (1) ◽  
pp. 39-64
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
International Law ◽  
Security Council ◽  
Common Law ◽  
The Past ◽  
Primary Responsibility ◽  
Un Security Council ◽  
Peace And Security ◽  
Effective Performance ◽  
The Uk

Over the past decade, the effective performance by the UN Security Council of its primary responsibility in the area of peace and security has increasingly become contingent on the implementation of its decisions within the national legal systems of the UN Member States. An examination of this issue in the context of the British legal system could offer a useful case-study of the ways to enhance the effectiveness of the UN collective security mechanism, to enforce the limits on the legitimacy of that mechanism, and also to highlight the practical difficulties that may accompany the attempts to apply Security Council resolutions domestically. This contribution exposes all these issues, focusing on the practice of the uk courts over the past decade. It examines the mediation of the effect of Security Council resolutions into English law through the 1946 United Nations Act, the royal prerogative and other common law techniques. After that, the contribution moves on to examine the English courts’ handling of the normative conflict between a Security Council resolution and other sources of international law.

The Creation and Expansion of the International Criminal Court: A Legal Explanation

2009 ◽  
Author(s):  
Emilia Justyna Powell ◽  
Sara McLaughlin Mitchell
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
State Level ◽  
Criminal Court ◽  
Legal Systems ◽  
International Courts ◽  
The Creation

International courts have proliferated in the international system in the past century, with one hundred judicial or quasi-judicial bodies currently in existence. While the supply of international courts has increased substantially, state level support for international courts varies across states, across courts, and over time. This paper focuses on the cross-sectional and temporal variation in state level support for a particular court, the International Criminal Court (ICC). The authors argue that domestic legal systems create different predispositions with respect to states’ willingness to join adjudicatory bodies and the design of their commitments to international courts. Negotiators involved in the creation of the ICC pushed for rules and procedures that mimicked those of their domestic legal systems to help reduce uncertainty regarding the court’s future behavior and decision-making processes. This interesting process of legal bargaining led to the creation of a sui generis court, one which represents a mixture of common law and civil law systems. The hybrid nature of the court’s design enhanced the attractiveness of the court to civil and common law states, making them significantly more likely to sign and ratify the Rome Statute. Empirical models demonstrate that common and civil law states were fervent supporters of the ICC in preliminary negotiations and that they have shown higher levels of support for the Court since the ICC’s inception in comparison to Islamic law or mixed law states.

scholarly journals Teaching the World Court Makes a Bad Case: Revisiting the Relationship Between Domestic Courts and the ICJ

2021 ◽  
pp. 259-280
Author(s):  
Raffaela Kunz
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
International Courts ◽  
International Court ◽  
Domestic Courts ◽  
The World ◽  
Effective System ◽  
The Icj ◽  
International Adjudication ◽  
The One

AbstractSentenza 238/2014 once more highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court (ItCC) also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. Sentenza 238/2014 suggests that domestic courts, in times of global governance and increased activity of international courts, see the role they play at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This chapter does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the International Court of Justice, in reality, more often than not, they have refused to do so, arguing that its judgments are not self-executing and thus deferring the implementation to the political branches. Assessing this practice, the chapter argues that domestic courts should take a more active stance and overcome the purely interstate view that seems at odds with present-day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the chapter cautions that there is a considerable risk of setting dangerous precedents by openly defying international judgments. Domestic courts should carefully balance the different interests at stake, namely an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand. The chapter finds that the ItCC’s attempt to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality.

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