Part III The Major Cases and Controversies: A Survey of State Practice, 6 The Major Cases

2019 ◽  
Author(s):  
McCaffrey Stephen C
Keyword(s):  
Dispute Resolution ◽  
The Other ◽  
Third Party ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
State Practice ◽  
The World ◽  
International Profile

This chapter explores cases bearing on the field of international watercourses that have been decided by the International Court of Justice or its predecessor. States have submitted only a few disputes concerning international watercourses to the International Court of Justice or its predecessor, though the pace is clearly picking up. There are doubtless many factors that explain this phenomenon, including reluctance to give a dispute a high international profile, reluctance to trust dispute resolution to a third party over whom states have no control, hesitancy about submitting a dispute to a tribunal composed of judges, the expense of litigating before the World Court, and the like. On the other hand, states are bringing an increasing number of cases of all kinds, including those concerning international watercourses, to the Court, indicating that it is becoming a more popular forum for the resolution of disputes.

New States, Regionalism and International Law

1967 ◽  
Vol 5 ◽  
pp. 118-141 ◽  
Author(s):  
L. C. Green
Keyword(s):  
General Practice ◽  
International Law ◽  
International Justice ◽  
The Other ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
New States ◽  
The One

Traditionally, international law has come to be regarded as consensual in nature, depending for its authority upon the recognition and acceptance of those entities which it seeks to bind. This view was accepted by the Permanent Court of International Justice in the S.S. Lotus: “The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Article 38 of the Statute of the World Court, when listing the “sources” of international law, also acknowledges its consensual basis. In its substantive portion the article refers to conventions “establishing rules expressly recognized by the contesting States.” It then refers to custom “as evidence of a general practice accepted as law,” which has been explained by the International Court of Justice in the Asylum Case: “The Party which relies on a custom … must prove that this custom is established in such a manner that it has become binding on the other Party. [It] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the [one] State … and a duty incumbent on the [other] State.”

Equity in International Law

1987 ◽  
Vol 22 (2) ◽  
pp. 161-183 ◽  
Author(s):  
Ruth Lapidoth
Keyword(s):  
Burkina Faso ◽  
International Law ◽  
The Other ◽  
International Court Of Justice ◽  
Applicable Law ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
The Law ◽  
The Republic

In its judgment concerning the frontier dispute between Burkina Faso and the Republic of Mali (1986), the Chamber ot the International Court of Justice (I.C.J.) summarized its opinion on the applicability of equity as follows:It is clear that the Chamber cannot decideex aequo et bonoin this case. Since the Parties have not entrusted it with the task of carrying out an adjustment of their respective interests, it must also dismiss any possibility of resorting to equitycontra legem. Nor will the Chamber apply equitypraeter legem. On the other hand, it will have regard to equityinfra legem, that is, that form of equity which constitutes a method of interpretation of the law in force, and is one of its attributes. As the Court has observed: “It is not a matter of finding simply an equitable solution but an equitable solution derived from the applicable law”.

Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication

2020 ◽  
Vol 19 (1) ◽  
pp. 79-106
Author(s):  
Andreas Kulick
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
The Other ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
International Adjudication

Abstract International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where does one draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement between the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.

Case Analysis: Case to the International Court of Justice on Legality of French Nuclear Testing

1996 ◽  
Vol 9 (2) ◽  
pp. 431-443
Author(s):  
A. M. Bracegirdle
Keyword(s):  
New Zealand ◽  
Political Parties ◽  
Case Analysis ◽  
The Other ◽  
Nuclear Testing ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Nuclear Weapon State ◽  
International Court ◽  
The World

Last year, for the second time in a little over 20 years, New Zealand asked the International Court of Justice to adjudicate the legality of French nuclear testing. This followed the announcement by the new President of France to the effect that the moratorium that his predecessor had put in place three years earlier, and had promised that France would continue to observe, would be terminated. The action by the New Zealand government was based on a unanimous decision by all political parties in New Zealand. This action reflected the anger of the countries in the South Pacific at the fact that a nuclear-weapon state was still prepared, in 1996, to explode nuclear devices in fragile marine environments on the other side of the world. In short, New Zealand wanted to utilize all available opportunities to persuade France not to proceed.

National Judges and Judges Ad Hoc of the International Court of Justice

1999 ◽  
Vol 48 (4) ◽  
pp. 889-900 ◽  
Author(s):  
Stephen M. Schwebel
Keyword(s):  
Advisory Committee ◽  
Ad Hoc ◽  
Fundamental Problem ◽  
International Justice ◽  
State Party ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
The World

When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that: “In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Court's] Statute frankly recognises and deals with.”1

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.

The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) – Preliminary Objection

1997 ◽  
Vol 10 (3) ◽  
pp. 541-551
Author(s):  
Roger S. Clark
Keyword(s):  
United States Of America ◽  
Case Law ◽  
Third Party ◽  
Advisory Opinion ◽  
Islamic Republic ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
Court Of Justice ◽  
International Court ◽  
Islamic Republic Of Iran

The case-law of the International Court of Justice (Court) is replete with arguments about whether the Court has jurisdiction to entertain the particular dispute (or request for advisory opinion) with which the Court is faced. These arguments are framed at one level as matters of interpretation of the relevant instruments. But they typically play out as well a multiplicity of variations on the overlapping themes of sovereignty (the extent to which states have been prepared to concede decision-making to third-party settlement mechanisms) and justiciability (the extent to which they will accept that an issue may be governed by ‘law’ and thus be susceptible to resolution by judicial actors).

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