Sources in the Meta-History of International Law

2018 ◽  
Author(s):  
Mark Weston Janis
Keyword(s):  
World War I ◽  
International Law ◽  
Scientific Revolution ◽  
Case Law ◽  
New Paradigm ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
History Of ◽  
History Of International Law

This chapter introduces a ‘meta-theory’ of international law. It employs the insights of Thomas Kuhn, who argued that once a paradigm has been accepted by a scientific community, most scientists accept it without much question. When the paradigm is overwhelmed, a ‘scientific revolution’—a new paradigm—emerges. The paradigm for the sources of international law is Article 38 of the International Court of Justice (ICJ) Statute, which emerged during and after World War I when international lawyers, faced with the horrors of that awful conflict, lost faith in their old discipline, thereby initiating Kuhn’s scientific revolution. Nowadays, Article 38 remains an attractive paradigm: first because the ICJ and its Statute are almost universally accepted; secondly, because it is neatly formulated; thirdly, because the paradigm has been confirmed in case law and commentary; and fourthly, because it is widely taught.

The History of Article 38 of the Statute of the International Court of Justice

2018 ◽  
Author(s):  
Ole Spiermann
Keyword(s):  
International Law ◽  
Case Law ◽  
Historical Records ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
The Icj ◽  
History Of

This chapter takes a look at Article 38 of the International Court of Justice (ICJ) Statute. This article intends to define so-called sources or origins of international law to be used by the World Court. The text dates back to 1920, before the predecessor of the ICJ, i.e. the PCIJ, took up its activities. The chapter notes that since 1920, Article 38 has featured prominently in the theory on so-called sources of international law, while the provision has been of little relevance in the case law of the International Court of Justice (ICJ) and its predecessor. Based mainly on historical records, the chapter seeks an explanation, which in turn may shed new light on sources theory.

scholarly journals Środki tymczasowe w stanach nadzwyczajnych. Uwagi na tle sprawy Gruzja v. Federacja Rosyjska przed Międzynarodowym Trybunałem Sprawiedliwości

2019 ◽  
pp. 181-204
Author(s):  
Elżbieta Hanna Morawska
Keyword(s):  
International Law ◽  
Case Law ◽  
Prima Facie ◽  
General Nature ◽  
International Court Of Justice ◽  
International Court ◽  
Legal Nature ◽  
The Icj ◽  
Interim Measure ◽  
And Function

The article deals with some aspects of the International Court of Justice (ICJ) jurisdiction considered in recently decided dispute between Georgia and Russian Federation. The analysis essentially covers the question of provisional measures: the conditions for their indication, their legal nature and function. The article refers to measures indicated under Article 41 of the Statute of the ICJ which allows the Court to indicate provisional measures providing interim protection to the rights of either party to a pending dispute. Having regard to the relevant case-law of the ICJ, two issues are discussed, namely the existence of prima facie jurisdiction and risk of irreparable prejudice and urgency. In addition to the measures referred to specific measures aimed at preserving specific rights, the article draws attention to the Interim measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties. As Russia does not recognize the compulsory jurisdiction of the ICJ, the greater part of the article are dedicated to questions regarding the jurisdictional basis for Georgia’s action before the ICJ and the issues of the procedural preconditions for the sesin of the Court in the compromissory clause, under art. 22 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). It will also comment on whether the dispute between Georgia and Russia really concerned the issues of “the interpretation or application” of CERD,  or respect for others international law principles, i.e. the legality of the use of force, sovereignty, territorial integrity and self-determination.

The International Court of Justice and International Organisations

2007 ◽  
Vol 9 (2) ◽  
pp. 181-186 ◽  
Author(s):  
Catherine Brölmann
Keyword(s):  
International Law ◽  
Case Law ◽  
Legal Framework ◽  
International Organisations ◽  
International Court Of Justice ◽  
Legal Personality ◽  
International Court ◽  
The Icj ◽  
International Legal Personality ◽  
Intergovernmental Organisations

AbstractThis vignette deals with the position of international intergovernmental organisations as non-state actors. In the case law of the ICJ the independent identity of international organisations is addressed in the formal terms of international legal personality. Such personality is undisputed in international practice: for example, international organisations not only have the capacity to conclude treaties but also, although the legal framework is not entirely settled yet, to bear international responsibility for violations of international law. The ICJ arguably has had a central role in the conceptualisation of organisations as independent actors in international law: with the 1949 Reparation Opinion intergovernmental organisations essentially received at one stroke the paraphernalia required by an international legal actor. The framework proposed by the Court was widely adopted to match developing practice and, although organisations figure in the majority of cases subsequently brought before the ICJ, it was considered and to some extent refined only in the 1996 Legality of the Use by a State of Nuclear Weapons in Armed Conflict Opinion.

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.

The Obligation to Undertake an Environmental Assessment in the Jurisprudence of the ICJ: A Principle in Search of Autonomy

2017 ◽  
Vol 8 (1) ◽  
pp. 158-169
Author(s):  
Elisa RUOZZI
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
Due Diligence ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The One ◽  
Definition Of ◽  
The Impact

AbstractThe practice of carrying out an environmental impact assessment (EIA) has gained strength in international law and jurisprudence, finding application in the case law of the International Court of Justice (ICJ). If, on the one hand, the ICJ has recognized the customary nature of this principle, on the other its application poses a set of challenges, mainly linked to the autonomy of this obligation from other international environmental law norms. More precisely, the obligation at issue has been applied in connection with the due diligence and notification principles, creating uncertainty about its scope, as well as about its substantive or procedural nature. Likewise, the autonomy of the obligation to perform an EIA has been challenged in relation to the definition of the content and scope of the obligation itself, which in turn is linked to the existence of applicable treaty provisions or of soft law. This article discusses the impact of these elements on the reasoning of the Court in the cases at issue, in order to demonstrate how such lack of autonomy can undermine the coherence of the reasoning itself and, therefore, an effective application of the principle.

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.

Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata

2015 ◽  
Vol 28 (1) ◽  
pp. 73-89 ◽  
Author(s):  
ANDREAS KULICK
Keyword(s):  
International Law ◽  
Case Law ◽  
International Court Of Justice ◽  
Public International Law ◽  
Res Judicata ◽  
International Court ◽  
The Icj ◽  
Preah Vihear ◽  
The Temple

AbstractThe judgment of the International Court of Justice (ICJ) of 11 November 2013, interpreting its 1962 judgment in the case concerning the Temple of Preah Vihear, inspires a reconsideration of the role of interpretation proceedings pursuant to Article 60 of the Statute of the Court. In particular, it invites us to take a closer look at the role and scope of the principle of res judicata in public international law in general and as considered in the case law of the Court in particular. This contribution reveals the competing concepts of the principle in interpretation and consecutive original contentious proceedings, and promotes instead a uniform concept that avoids the conflict inherent in current approaches.Section 1 introduces Article 60 of the ICJ Statute (section 1.1.) and thereinafter views interpretation proceedings before the Court in light of the Court's case law, in particular its 2013 interpretation judgment in the Temple case (section 1.2.). Section 2 constitutes the heart of the analysis and discusses what will be identified as the competing concepts of res judicata. Section 2.1. presents the functions, concepts, and case law of res judicata in public international law in general, whereas section 2.2. focuses specifically on the case law of the ICJ and the Permanent Court of International Justice (PCIJ) in this regard. Finally, section 2.3. concludes this study by setting out the approach that the author regards as appropriate to reconcile the competing concepts of res judicata.

I

1986 ◽  
Vol 80 (4) ◽  
pp. 896-901 ◽  
Author(s):  
Manfred Lachs
Keyword(s):  
International Law ◽  
The United States ◽  
Second World War ◽  
World War ◽  
International Court Of Justice ◽  
International Court ◽  
History Of ◽  
American Society ◽  
Second World ◽  
Shed Light

To write of Philip Jessup means to survey the history of the teaching of international law in the United States throughout the last half century; to cover all important events concerning the birth of international organizations on the morrow of the Second World War; to visit the halls of the General Assembly and the Security Council; to attend meetings of the American Society of International Law and the Institute of International Law, where he so frequently took the floor to shed light on their debates; to attend sittings of the International Court of Justice in the years 1960-1969. I could hardly undertake this task; there are others much more qualified to do so. What I wish to do is to recall him as a great jurist I knew and a delightful human being; in short, a judge and a great friend whom I learned to admire.

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 The Illusion of Perfect Justice

2021 ◽  
pp. 55-70
Author(s):  
Christian Tomuschat
Keyword(s):  
World War Ii ◽  
International Law ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
German Occupation ◽  
International Court ◽  
The World ◽  
The Icj ◽  
The Right ◽  
Italian Constitution

AbstractThe judgment of the Italian Constitutional Court (ItCC) of 22 October 2014 has set a bad precedent for international law by denying the implementation, within Italy, of the judgment of the International Court of Justice (ICJ) of 3 February 2012. The ICJ found that Italian courts and tribunals had violated German jurisdictional immunity by entertaining suits brought by Italian citizens against Germany on account of damages caused by war crimes committed during World War II by German occupation forces. According to a well-consolidated rule of general international law, no state may be sued before the courts of another state with regard to acts performed in the exercise of its sovereign power. In contravention of Article 94 of the UN Charter, the ItCC deemed it legitimate to discard that ruling because of the particularly grave character of many of the violations in question. It proceeded from the assumption that the right to a remedy established under the Italian Constitution was absolute and must apply even where the financial settlement of the consequences of armed conflict is at issue. However, it has failed to show the existence of any individual reparation claims and has omitted to assess the issue of war reparations owed by Germany in their broader complexity. The judgment of the ItCC might be used in the future as a pretext to ignore decisions of the World Court.

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