An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?

2018 ◽  
Vol 21 (1) ◽  
pp. 210-270
Author(s):  
Rishi Gulati
Keyword(s):  
International Law ◽  
Due Process ◽  
Fair Trial ◽  
Civil Servants ◽  
International Labour Organisation ◽  
International Court Of Justice ◽  
Procedural Law ◽  
International Court ◽  
The Right

Highlighting that the right to a fair trial in international law now forms an aspect of international administrative procedural law, I argue when international administrative tribunals administer justice to international civil servants, fair trial guarantees must be accorded. Particularly, in this paper I assess the two leading international administrative tribunals, the United Nations Dispute Tribunal and the Administrative Tribunal of the International Labour Organisation, in terms of their compliance with fair trial standards. Focusing on the jurisprudence of the International Court of Justice, I first show how what I call an international procedural law of fair trial has been developed and requires that basic due process guarantees must be accorded wen delivering international administrative justice. I then develop fair trial standards with greater nuance, especially focusing on the quality of independence and impartiality. Then, the paper engages in a detailed analysis of the leading international administrative tribunals in terms of compliance with fair trial standards, concluding that significant deficits exist. If a fair trial for international civil servants is to be guaranteed, significant structural reforms are necessary.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

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.

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.

scholarly journals The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties

2020 ◽  
Vol 22 (1) ◽  
pp. 33-60
Author(s):  
Danae Azaria
Keyword(s):  
International Law ◽  
Legal System ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
International Court ◽  
Rule Set ◽  
The Law ◽  
International Law Commission

Abstract Although it is widely accepted that the pronouncements of expert treaty bodies are not binding, this does not mean that they are deprived of any effect in law. This study focuses on their legal effects vis-à-vis the interpretation of treaties, and explores how the International Court of Justice and the International Law Commission have dealt with the pronouncements of expert treaty bodies in relation to the interpretation of treaties. The tale about the Court’s and the Commission’s approaches in this respect demonstrates the profound belief of both the Court and the Commission that international law is a legal system, which calls for reliance on the pronouncements of expert treaty bodies as integral actors within the legal system with some ‘authority’ concerning the determination of the law (within their mandate). This does not mean that the Court and the Commission support a ‘blind reliance’ on such pronouncements; rather the quality of each pronouncement is a criterion for relying on it. The reasoning of the Court and (and implicitly of) the Commission also shows that they consider that international law as a legal system, which necessitates ‘legal consistency’. This in turn suggests that the reliance on pronouncements of expert treaty bodies, which are mandated to supervise the application (and interpretation) of particular treaties, may constitute an exercise of ‘systemic integration’ which exceeds the confines of the rule set forth in Article 31(3)(c) of the Vienna Convention on the Law of Treaties.

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (I.C.J.)

2019 ◽  
Vol 58 (3) ◽  
pp. 445-602
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
The United Kingdom ◽  
International Court ◽  
Un General Assembly ◽  
The Right ◽  
Chagos Archipelago ◽  
Legal Consequences

In its Chagos Advisory Opinion, the International Court of Justice (ICJ) addressed two questions posed in a request from the UN General Assembly. First, had Mauritius's decolonization been completed when it gained independence in 1968, after the excision of the Chagos Archipelago? Second, what were the legal consequences flowing from the United Kingdom's continued administration of the Archipelago? It was thought that the Court might shy away from giving an Opinion in this case as, arguably, it concerned a bilateral sovereignty dispute that the United Kingdom had not agreed to have resolved by judicial decision. However, as it turned out, the Court delivered surprisingly robust responses to the questions posed. The Opinion—and the numerous Separate Opinions that accompanied it—offer a thorough re-evaluation of the customary international law (CIL) concerning the right to self-determination in cases of decolonization.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

Procedural Normative System of the International Court of Justice

2017 ◽  
Vol 30 (3) ◽  
pp. 661-683
Author(s):  
SERGEY M. PUNZHIN
Keyword(s):  
International Law ◽  
Empirical Analysis ◽  
General Scheme ◽  
International Court Of Justice ◽  
Normative System ◽  
Procedural Law ◽  
Court Of Justice ◽  
International Court ◽  
The Law

AbstractOn the basis of a thorough empirical analysis, the article comes to a number of theoretical conclusions which have never previously been discussed in the literature. In particular, it demonstrates that the Court's procedure is governed not only by ‘procedural law’ but also by norms which are non-legal. Moreover, it clearly circumscribes which norms in the documents relating to the functioning of the Court are procedural and which lack this character. In their entirety, provisions governing the Court's procedure form a ‘normative system’, with the law being only one of its elements. The Court's procedural norms originate both from the traditional sources of international law as well as from sources which, according to the usual classification, do not necessarily belong to that category. The procedural norms that are derived from all of these sources, while not tending towards uniformity in terms of their characteristics and effect, nevertheless form a system which operates as a whole. The procedure of the International Court of Justice does not fit neatly within the general scheme of ‘legal versus non-legal norms’; neither can one readily apply the theory of traditional sources of international law to a procedural system which brings together heterogeneous elements and must therefore be explained keeping in mind its own logic and nature.

Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo

2011 ◽  
Vol 39 (1) ◽  
pp. 1-11 ◽  
Author(s):  
James Ker-Lindsay
Keyword(s):  
International Law ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Parent State ◽  
International Court ◽  
Narrow View ◽  
The Icj ◽  
The Right ◽  
Key Questions

For 60 years, the international community has limited the right of territories to gain independence without the permission of the “parent state.” Such limits were, however, challenged when Kosovo unilaterally declared independence from Serbia, in February 2008. As a result, Belgrade referred the matter to the International Court of Justice (ICJ). On 22 July 2010, it came back with its long-awaited decision. Taking a narrow view of the question, the majority argued that, in general, declarations of independence, as mere statements, do not violate international law unless stated otherwise by the Security Council. Thus, Kosovo's declaration of independence cannot be considered as being wholly “unique” – as those states that supported its statehood have claimed. On the key questions of whether Kosovo's secession is legal, or if it is even a state, they chose to avoid controversy. On these points, the international community is no clearer now than it was before the case.

The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems

2007 ◽  
Vol 22 (3) ◽  
pp. 451-462 ◽  
Author(s):  
Francisco Orrego Vicuña
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Due Process ◽  
Law Of The Sea ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Fish Stocks ◽  
International Court ◽  
The Law ◽  
Dispute Settlement System

AbstractThis presentation describes the system of provisional measures by the International Tribunal for the Law of the Sea under Article 290 of the 1982 Convention on the Law of the Sea. By pointing towards the binding legal nature of provisional measures and the introduction of a duty to report on compliance efforts, he begins his article stressing the system's efficiency. The author then comments on the various prerequisites while drawing comparisons with the prescription of provisional measures by the International Court of Justice. He finally turns towards the problems of the application of Article 290 by focusing on the requirement of a specific demand by a State party for a provisional measure. While admitting the Tribunal's authorization to issue provisional measures with a view to the marine environment and the increasing influence of the precautionary principle in public international law, he also advises against the temptations to exceed the limits of provisional measures in international law. The interplay with other treaties which refer to the Convention's dispute settlement system (especially the Agreement on Straddling and Highly Migratory Fish Stocks) even adds to this danger in the author's eyes. He closes with an appeal for due process, prudence and impartiality.

The Kosovo Advisory Opinion Scrutinized

2011 ◽  
Vol 24 (2) ◽  
pp. 355-383 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
International Law ◽  
Self Determination ◽  
Added Value ◽  
Advisory Opinion ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Right

AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

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