The Invocation of Member State Responsibility before National and International Courts

2015 ◽  
Vol 12 (2) ◽  
pp. 484-501
Author(s):  
Francesco Messineo
Keyword(s):  
Public Law ◽  
International Courts ◽  
State Immunity ◽  
Diplomatic Protection ◽  
Domestic Courts ◽  
Legal Costs ◽  
International Adjudication ◽  
The Right ◽  
Substantive Law ◽  
Domestic Law

This article highlights the various legal obstacles faced by injured parties when litigating against States in relation to their participation in the operations of international organizations. The primary issue is finding the right forum. Rules on the invocation of responsibility hinge on whether the respondent State is sued before its own courts (domestic law being decisive), before the courts of another country (state immunity notwithstanding), or before international courts or tribunals (Monetary Gold difficulties aside). This choice will largely depend on who the applicant is: an individual, or a State. In turn, a State may act either because it was directly injured or because it is espousing a claim of one of its citizens, in which case rules on diplomatic protection may present further obstacles. Assuming that a suitable forum is available, other hindrances may be encountered, such as legal costs and restrictive substantive law. Solutions often proposed as remedies to such obstacles, such as the further reduction of State immunity before domestic courts, may be less effective than a more ambitious strategy aimed at increasing the range of situations in which domestic public law procedures and international adjudication are actually available to victims of harm.

Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

2014 ◽  
Vol 14 (2) ◽  
pp. 358-376
Author(s):  
Marcel Brus
Keyword(s):  
Human Rights ◽  
International Law ◽  
Domestic Court ◽  
Core Element ◽  
International Crimes ◽  
State Immunity ◽  
Domestic Courts ◽  
Humanitarian Ethics ◽  
The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 131-149
Author(s):  
Cameron Miles
Keyword(s):  
International Law ◽  
International Courts ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Model Based ◽  
Domestic Courts ◽  
State Practice ◽  
The Icj ◽  
International Adjudication

Article 38(1)(d) of the ICJ Statute provides that “judicial decisions” may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term “judicial decisions” confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission’s Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC’s assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

scholarly journals Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law

2021 ◽  
pp. 337-342
Author(s):  
Andreas L. Paulus
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The 1960S ◽  
The One ◽  
Substantive Law ◽  
Domestic Law

AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.

scholarly journals Diaspora Policies, Consular Services and Social Protection for Maltese Citizens Abroad

2020 ◽  
pp. 337-355
Author(s):  
Hillary Briffa ◽  
Alessandra Baldacchino
Keyword(s):  
Social Protection ◽  
Primary Source ◽  
Source Material ◽  
Fundamental Rights ◽  
Current Status ◽  
Diplomatic Protection ◽  
The Social ◽  
The Individual ◽  
The Right ◽  
Domestic Law

Abstract This chapter assesses the social protection policies enacted by the Maltese government to support Maltese citizens living abroad. First, the current status of the Maltese diaspora and their engagement with the homeland is contextualized, and key infrastructure and policies outlined. In the Maltese legal system, there is no domestic law granting the right to consular or diplomatic protection, however this is offered as a matter of practice based on respect for the fundamental rights of the individual. The strength of historic ties with the destination countries of Maltese emigrants is mainly reflected in the number of Reciprocal Agreements signed between Malta and partner countries. An overview of these formal treaties and their assured benefits is provided. Thereafter, five areas of concern for the social security needs of Maltese diaspora are addressed: unemployment, healthcare, pensions, family-related benefits, and economic hardship. The chapter concludes by acknowledging the communication initiatives between the Maltese government and its citizens abroad; however, it recognises that there is still a long way to go in terms of ensuring democratic participation of citizens in elections. Throughout, the evidence has been compiled primarily as a result of consultation with primary source material, as well as interviews with a range of experts within relevant Maltese governmental bodies.

scholarly journals Teaching the World Court Makes a Bad Case: Revisiting the Relationship Between Domestic Courts and the ICJ

2021 ◽  
pp. 259-280
Author(s):  
Raffaela Kunz
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
International Courts ◽  
International Court ◽  
Domestic Courts ◽  
The World ◽  
Effective System ◽  
The Icj ◽  
International Adjudication ◽  
The One

AbstractSentenza 238/2014 once more highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court (ItCC) also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. Sentenza 238/2014 suggests that domestic courts, in times of global governance and increased activity of international courts, see the role they play at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This chapter does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the International Court of Justice, in reality, more often than not, they have refused to do so, arguing that its judgments are not self-executing and thus deferring the implementation to the political branches. Assessing this practice, the chapter argues that domestic courts should take a more active stance and overcome the purely interstate view that seems at odds with present-day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the chapter cautions that there is a considerable risk of setting dangerous precedents by openly defying international judgments. Domestic courts should carefully balance the different interests at stake, namely an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand. The chapter finds that the ItCC’s attempt to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

scholarly journals The right to the truth of victims of a repressive regime in the international public law

Temida ◽  
2016 ◽  
Vol 19 (3-4) ◽  
pp. 517-538
Author(s):  
Miroslav Stevanovic
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Law ◽  
The State ◽  
International Courts ◽  
Legal Principle ◽  
Break Up ◽  
Repressive Regime ◽  
The Right ◽  
International Instruments

The break-up with the repressive regime, and above all rehabilitation of the consequences for victims, includes determining the truth about the character, carriers and methods of systematic violation of basic human rights. Many international instruments, which deal with the problem of victims of repressive regimes and the state discontinuity with repressive governance, proclaim the concept of the right to the truth. The paper deals with the normative contents of the right to the truth and different aspects of this concept that international courts recognize in relation to victims of repressive regimes. The results of the analysis indicate that the concept of the right to the truth sets before the states requirements to try to provide institutional preconditions for individual and collective victims to find out and access the truth, but that the case-law does not recognize as enforceable any authorisation which stems from the right to the truth. Currently, the right to the truth presents a principle that relates to realising some internationally protected rights of a person, but there are indications that it has been normatively shaping in order to become a legal principle of transition.

Inviolability Not Immunity

2019 ◽  
Vol 17 (1) ◽  
pp. 45-76
Author(s):  
Thomas Weatherall
Keyword(s):  
International Law ◽  
High State ◽  
International Courts ◽  
Customary International Law ◽  
Arrest Warrant ◽  
The Past ◽  
Physical Interference ◽  
State Official ◽  
Domestic Courts ◽  
Domestic Law

Abstract Recent proceedings involving former Sudanese President Omar Al-Bashir have highlighted a novel intersection of international and domestic law: the domestic execution of international arrest warrants for an incumbent high state official. While the overwhelming trend over the past decade has been for international and domestic courts to analyse this issue from the perspective of immunity, that approach is not sufficient. The domestic execution of an international arrest warrant presents a question of inviolability, not immunity. Although the immunity and inviolability enjoyed by incumbent high state officials under customary international law often apply coextensively, the two doctrines are distinct in function and scope. While immunity precludes the exercise of jurisdiction by a foreign court, it is inviolability that operates as a privilege from physical interference by domestic authorities. The arrest and surrender of incumbent high state officials is likely to persist as both an objective and a challenge for international courts. If they are to succeed in this regard, international courts must account for why the privilege of inviolability does not bar the execution of international arrest warrants.

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