Are Nuclear Weapons Illegal? The Role of Public International Law and the International Court of Justice

2009 ◽  
Vol 15 (1) ◽  
pp. 65-87 ◽  
Author(s):  
A. Anastassov
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court

The Completeness of International Law and Hamlet's Dilemma

1999 ◽  
Vol 68 (3) ◽  
pp. 225-247 ◽  
Author(s):  
◽  
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
A Priori ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Current State ◽  
Court Of Justice ◽  
International Court ◽  
Self Defence

AbstractThe aim of this paper is to examine whether the possibility of a genuine non liquet is ruled out by a so-called ‘closing rule’underlying public international law. The answer to this question largely determines the relevance of the debate on the legality and legitimacy of the pronouncement of a non liquet by an international court. This debate was recently provoked by the Advisory Opinion of the International Court of Justice on the Legality of the Threat and Use of Nuclear Weapons. In this opinion, the Court held that it could not definitively conclude whether the threat or use of nuclear weapons was contrary to international law in an extreme circumstance of self-defence in which the survival of a state is at stake. Nevertheless, some authors have argued that, since international law contains a closing rule stating that the absence of a prohibition is equivalent to the existence of a permission (or vice versa), the Court had in fact decided the legality of nuclear weapons. By virtue of this closing rule, the pronouncement of a non liquet would be impossible. In our analysis, we have taken issue with this view and claim that there are no a priori reasons for the acceptance of a closing rule underlying international law. It is possible indeed that a legal system is simply indifferent towards a certain type of conduct. Moreover, even if a closing rule would be assumed, this rule would be of no help in determining the legality or illegality of the threat and use of nuclear weapons, since the Court asserted that the current state of international law and the facts at its disposal were insufficient to enable it to reach a definitive conclusion. Nothing follows from this assertion, except the assurance that international law cannot definitively settle the question of the legality of the threat or use of nuclear weapons: to be permitted or not to be permitted, that is still the question. Hamlet's dilemma precisely.

The International Court of Justice and Cultural HeritageInternational Cultural Heritage Law Through the Lens of World Court Jurisprudence?

2020 ◽  
pp. 223-242
Author(s):  
Gabriele Gagliani
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
Case Law ◽  
International Justice ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

The International Court of Justice, and its predecessor court, the Permanent Court of International Justice, have dealt with cultural heritage issues in a number of cases extending back over a century. Scholars’ attention to this case law appears fragmentary. This chapter intends to fill this gap and analyze the ICJ jurisprudence involving cultural heritage. Through the analysis of ICJ case law on cultural heritage and cultural heritage-related arguments resorted to by States in ICJ disputes, this chapter wishes to prove the relevance of cultural heritage issues for public international law and the key, often-underestimated role of the ICJ for international law on cultural heritage.

The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law

1999 ◽  
Vol 48 (1) ◽  
pp. 3-19 ◽  
Author(s):  
Mariano J. Aznar-Gomez
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Case Law ◽  
Legal Order ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

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.

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.

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