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 Conceiving International Law’s Normative Order beyond the ‘Residual Negative Principle’

2018 ◽  
Vol 87 (4) ◽  
pp. 466-484
Author(s):  
Graham Melling
Keyword(s):  
International Law ◽  
Legal System ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Legal System ◽  
The Law ◽  
Normative Order

Due to the nature of the international legal system, the International Court of Justice (icj) is regularly presented with new questions about which international law is unclear or to which it does not yet extend – and is thereby incomplete. The approach of the icj when faced with such gaps raises some fundamental questions about the nature of the international legal system and the judicial function of the icj. The purpose of this article is to revisit and the critically evaluate the issue of how the icj responds when faced with a gap or lacuna in the law.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

A Lauterpachtian Affair: Security Exceptions as ‘Self-Judging Obligations’ in the Case Law of the International Court of Justice and Beyond

2021 ◽  
Vol 22 (4) ◽  
pp. 509-560
Author(s):  
Momchil Milanov
Keyword(s):  
International Law ◽  
World Trade ◽  
Case Law ◽  
Entire Body ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Legal System ◽  
The Relationship

Abstract Although Sir Hersch Lauterpacht never dealt with security exceptions during his time at the International Court of Justice (ICJ), his entire body of work formed the intellectual premise for the approach of the Court towards security exceptions and the way in which the ICJ manoeuvers in the larger debate on the relationship between law, politics and the proper discharge of the judicial function. The Lauterpachtian approach is understood as a particular attitude towards the judicial function in which the Court serves as an instrument for the protection of peace, as a guardian of the coherence and unity of the international legal system and as a driving force for the development of international law. However, in some other important elements of its reasoning, the Court seems to remain more Lauterpachtian in spirit than in letter. Despite these inconsistencies, the Court arguably exerted significant (albeit somehow uneven) influence over World Trade Organization panels and investment tribunals.

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.

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.

Obligations erga omnes and the question of standing before the International Court of Justice

2021 ◽  
pp. 1-21
Author(s):  
Priya Urs
Keyword(s):  
International Law ◽  
International Community ◽  
Genocide Convention ◽  
International Court Of Justice ◽  
Collective Interest ◽  
Progressive Development ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Issue Attention

Abstract A number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.

The Genocide Convention as a Human Rights Treaty: The Possible Contribution of the Inter-American Court of Human Rights to the Jurisprudence of the International Court of Justice

2015 ◽  
Vol 14 (3) ◽  
pp. 438-456
Author(s):  
Giovanna M. Frisso
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Genocide Convention ◽  
Potential Contribution ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Legal System

This article reflects upon the potential contribution of the jurisprudence of the Inter-American Court of Human Rights (iachr) to international law. This is done through an analysis of the debates related to two aspects of the 2007 judgment of the International Court of Justice (icj) on the application of the Genocide Convention, judgment which has received a great amount of criticism, in part because the approaches adopted by the icj differ from those adopted by human rights courts. The jurisprudence of the iachr has been used to illustrate these differences and to articulate the challenges that they pose to an understanding of the international legal system as a unified system. This article argues that due consideration of the jurisprudence of the iachr could have strengthened the persuasive force of the icj judgment, because it would have required the icj to clearly indicate the arguments relied on for choosing one of the different, and sometimes contradictory, approaches.

International Obligations Concerning Disarmament and the Cessation of the Nuclear Arms Race: Justiciability over Justice in the Marshall Islands Cases at the International Court of Justice

2019 ◽  
Vol 24 (3) ◽  
pp. 449-472
Author(s):  
Jonathan Black-Branch
Keyword(s):  
International Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Sufficient Evidence ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Nuclear Arms Race ◽  
The Uk

Abstract The International Court of Justice rulings in cases from the Marshall Islands against India, Pakistan and the UK not only failed to answer important questions regarding obligations to negotiate a nuclear cessation treaty and to disarm, but also raise new questions relating to the existence of a dispute under general international law. The Respondents objected to the Court’s jurisdiction to hear the case on the grounds that there was no justiciable dispute between them and the Marshall Islands, arguing that the issues should not be adjudicated within this forum. The Court agreed, finding there was not sufficient evidence of a dispute, per se, and consequently did not have jurisdiction to hear these cases on their merits as the Respondents were not aware of contentious issues. In the case of the UK, in particular, it was decided by a narrow majority, raising important questions about the Court’s strictly formalistic, and more importantly, unprecedented, approach regarding the existence of a dispute under international law. More significantly, the ruling avoided answering important questions relating to long-standing international obligations regarding disarmament and negotiations toward a treaty to cease the arms race pursuant to Article VI of the Nuclear Non-Proliferation Treaty, 1968. This article provides an overview and analysis of the Marshall Islands cases, examining the main legal issues and arguments, focusing on the Court’s reasoning and highlighting the division within the Court on substantive matters pertaining to obligations of nuclear-armed states.

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.

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