International Courts in the Hague: A Comparison between the ICTY and the ICJ and Their Respective Contributions to the International Rule of Law from the Perspective of Victims of International Crimes

2008 ◽  
Author(s):  
Milos Milovanovic
Keyword(s):  
Rule Of Law ◽  
International Courts ◽  
International Crimes ◽  
The Icj ◽  
The Hague ◽  
International Rule

scholarly journals 2000–2020: twenty years later, where are we in terms of the unity of international law?

2020 ◽  
Vol 9 (1) ◽  
pp. 6-23
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Legal Order ◽  
Public International Law ◽  
International Legal Order ◽  
The Hague ◽  
Peremptory Norms ◽  
International Rule

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

scholarly journals International human rights courts and the (international) rule of law: Part of the solution, part of the problem, or both?

2021 ◽  
Vol 10 (1) ◽  
pp. 118-138
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
International Human Rights ◽  
International Courts ◽  
The Rule Of Law ◽  
The Core ◽  
European Court ◽  
Margin Of Appreciation ◽  
International Human ◽  
International Rule

AbstractCritics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article focuses on regional human rights courts and argues that the same interests and values that justify rule of law standards of impartiality, independence and accountability domestically also justify similar standards for international courts. Focusing on the European Court of Human Rights and its doctrine of the margin of appreciation, the article demonstrates how this doctrine may contribute to fulfilling the rule of law but at the same time may also endanger it. This requires changes to the doctrine to ensure that the core rule of law standards of predictability and protection against arbitrary discretion are respected.

scholarly journals International Courts and Legalism in International Law

2017 ◽  
Vol 5 (1) ◽  
pp. 9
Author(s):  
Adam Wiśniewski
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
International Norms ◽  
International Courts ◽  
Dynamic Transition ◽  
The Face ◽  
International Obligations ◽  
The Will ◽  
International Rule

In this article, I argue that legalism, understood as a stronger commitment of states (and other subjects) to the observance of the rules of international law, was fostered by the dynamic development of international courts and tribunals, which started in the 1990s. This contribution has manifested itself in various ways, both external and internal. The multiplication of international courts, coupled with the widespread compulsory jurisdiction, has been crucial to strengthening state commitment to adhere to their international obligations. The interpretation and application of international norms ceased to depend solely on the subjective discretion of states. Therefore, judicialisation is rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. The problem of legalism in the context of international courts can, and should, also be examined in its “internal” aspect. This entails the examination of a number of issues connected with the courts’ status, competence, function, case law coherence and stability, judgment implementation, etc. Despite the problems and risks involved, the proliferation of international courts and tribunals can be perceived as one of the most important components of the dynamic transition of international law in recent decades. In this sense, one might argue that Hart was right in claiming that the functioning of courts, endowed with compulsory jurisdiction, is one of the conditions for recognising international law as genuine law. Another important effect of the judicialisation on international law is that, at the very least, certain international norms have acquired “objective” nature, detached from the will of states. This is due to the interpretation and application of these norms no longer depending solely upon the subjective discretion of states, but rather becoming subject to consideration and examination by an independent judicial body.Judicialisation is, thus, rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. Beyond any doubt, this process and its consequences markedly change the face of international law. The multiplication of international courts results in expanding the judicial institutional layer, making international law less horizontal. Additionally, in consequence of growing case law, the system of international law becomes more complex, developed, and mature. The development of international law is a natural aspect of the judicial function. This is due to the fact that international norms are, in many cases, incomplete and unclear, necessitating their interpretation, adaptation, and development in particular cases.

Lessons from the Andean Tribunal of Justice

2017 ◽  
Author(s):  
Karen J. Alter ◽  
Laurence R. Helfer
Keyword(s):  
Intellectual Property ◽  
Comparative Study ◽  
Rule Of Law ◽  
Legal Institutions ◽  
International Courts ◽  
The Third ◽  
Local Contexts ◽  
The Comparative Study ◽  
International Rule

This chapter highlights five broad lessons from a series of research and findings on the Andean Tribunal of Justice (ATJ) that contribute to the comparative study of international courts. The first is in adapting transplanted international legal institutions to local contexts. The chapter then provides that not all international courts seek to expand their influence and authority. The third lesson concerns expanding the interlocutors and compliance partners of international courts. Next, the chapter shows how the ATJ created judicial strategies for building the international rule of law in fraught environments. Finally, the fifth lesson covers defending regional intellectual property (IP) laws that protect local values and interests.

scholarly journals On the Judicialisation of International Law

2017 ◽  
Vol 7 ◽  
pp. 37-53
Author(s):  
Adam Wiśniewski
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
International Norms ◽  
International Courts ◽  
Dynamic Transformation ◽  
The Face ◽  
International Obligations ◽  
The Will ◽  
International Rule

The judicialisation of international law is a relatively recent phenomenon that gained momentum in the 1990s and 2000s. Coupled with the trend towards widespread compulsory jurisdiction, it has been crucial in strengthening the commitment of states to adhere to their international obligations. Another important effect of judicialisation on international law is that at least certain international norms have acquired an “objective” nature, detached from the will of states. This is because the interpretation and application of these norms is no longer dependent solely upon the subjective discretion of states, but is subject to consideration and examination by independent judicial bodies. The process of judicialisation, while contributing to the international rule of law, has undoubtedly changed the face of international law a great deal as a result of some other factors. The multiplication of international courts has led to the expansion of the judicial institutional layer, making international law less horizontal. Also, as a result of the growing case-law of these courts, the system of international law is becoming more complex and developed, and thus also more mature. The natural aspect of the judicial function is the development of international law. Despite the problems and risks involved, the proliferation of international courts and tribunals can be perceived as one of the important components of the dynamic transformation of international law during the recent decades.

scholarly journals Judicial authority, legitimacy and the (international) rule of law as essentially contested and interpretive concepts: Introduction to the special issue

2021 ◽  
Vol 10 (1) ◽  
pp. 75-90
Author(s):  
KNUT TRAISBACH
Keyword(s):  
Rule Of Law ◽  
Special Issue ◽  
Ronald Dworkin ◽  
Final Point ◽  
The Rule Of Law ◽  
Trade Offs ◽  
Judicial Authority ◽  
International Rule

AbstractBeyond setting the stage, the Introduction makes three claims about the conceptual triangle of the rule of law, judicial authority and legitimacy. The first is that all three are essentially contested and interpretive concepts in the sense of Walter B. Gallie and Ronald Dworkin. In their expositions, the contested and interpretative nature of such concepts is nothing to be ‘solved’, rather the formulation of different conceptions and contestation about them are central functions of such concepts. The interpretive and essentially contested nature points us to the relevant ‘actors’ and to conflicts and trade-offs between contested competencies. Thus the second point is that arguments about the rule of law and judicial legitimacy are often a means of questioning or securing the authority of a particular actor or institution in relation to other actors and institutions. The final point is that transposing concepts from the domestic to the supranational is a constructive endeavour because it entails creating new conceptions and substituting old ones as well as legitimising new authorities and delegitimising old ones. Thus, this special issue also cautions against discourses that ultimately are more about legitimation than about legitimacy and more about new ways of ruling than the rule of law.

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