Doing the Right Thing for the Right Reason – Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties

2008 ◽  
Vol 10 (2) ◽  
pp. 109-141 ◽  
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Present Article ◽  
Aegean Sea ◽  
Vienna Convention ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
International Court ◽  
Right Reason ◽  
The One ◽  
The Right

AbstractIn the interpretation of treaties, according to Article 31 of the 1969 Vienna Convention, interpreters shall pay primary regard to conventional language and to "relevant rules of international law applicable in the relations between the parties". Applying this provision, it is obvious that interpreters will sometimes face questions of an inter-temporal nature. What law or what language should be brought to bear on the interpretation process, exactly? The one that existed when the interpreted treaty was concluded? Or the one that exists at the time of interpretation? Over the last 30 years, international law doctrine has increasingly come to favour a rather lax approach to this issue. As the prevailing theory contends, different choices should be made depending on the particular treaty interpreted. The present article inquires into the reasons justifying this theory. As argued extensively, although there are certainly good reasons to agree with what the current legal doctrine contends, those good reasons are not the ones commonly invoked: the doctrine of inter-temporal law, as expressed in the Island of Palmas Arbitration, and the two decisions of the International Court of Justice in Namibia and the Aegean Sea Continental Shelf Delimitation, respectively. The supportive reasons lie elsewhere. As argued in the present article, it is imperative that international lawyers come to understand this; particularly if we consider it important that all inter-temporal problems – including those obviously foreseen in the international law literature – are resolved consistently.

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.

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.

Comparative International Law Within, Not Against, International Law: Lessons from the International Law Commission

2015 ◽  
Vol 109 (3) ◽  
pp. 498-513 ◽  
Author(s):  
Mathias Forteau
Keyword(s):  
International Law ◽  
Comparative Method ◽  
Comparative Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
Degree Of Separation ◽  
The One ◽  
International Law Commission ◽  
The Relationship

Public international law and comparative law have so far been regarded as largely distinct fields, with little to no overlap between them. The degree of separation between the two disciplines is rendered in particularly stark relief by the absence in practice or scholarship of any real inquiry into the relationship between comparative law on the one hand and customary international law and general principles of international law on the other. Some eminent international lawyers go so far as to claim that it would be both unnecessary and unrealistic to have recourse to comparative law in the context of the identification of customary international law and general principles of law, pointing to the case law of the Permanent Court of International Justice and the International Court of Justice, which, according to them, “show[s] a clear disinclination towards the use of the comparative method.”

Down the Danube: The Vienna Convention on the Law of Treaties and the Case Concerning the GabcïKovo-Nagymaros Project

1998 ◽  
Vol 47 (4) ◽  
pp. 837-854 ◽  
Author(s):  
Daniel Reichert-Facilides
Keyword(s):  
International Law ◽  
Practical Importance ◽  
Vienna Convention ◽  
International Court Of Justice ◽  
Customary International Law ◽  
National Courts ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
The Law

Over the last 30 years, the Vienna Convention on the Law of Treaties1 has emerged as one of the most influential instruments of modern international law. The Convention, which was adopted at the UN Conference on the Law of Treaties on 23 May 1969, entered into force on 27 January 1980 and has meanwhile been ratified by more than 80 States.2 Yet, as it does not operate retroactively,3 the scope of application is growing only slowly and its practical importance stems, rather, from the fact that the Convention is widely considered a restatement of customary international law. As early as 1971 the International Court of Justice referred to the articles governing termination for breach of treaty as a codification of the existing law on the subject.4 Since then both international tribunals and national courts have more and more habitually relied on the material provisions of the Convention to ascertain traditional rules of the law of treaties.5

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.

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.

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