scholarly journals The Shape and Structure of the ‘Usable Past’: An Empirical Analysis of the use of Precedent in International Adjudication

2019 ◽  
Author(s):  
Niccolo Ridi
Keyword(s):  
International Law ◽  
Large Scale ◽  
Computational Analysis ◽  
The Body ◽  
Appellate Body ◽  
Investment Arbitration ◽  
The Icj ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
Usable Past

How do international adjudicators use precedent? This question has been addressed several times in the literature, but doctrinal accounts have generally failed to consider the aggregate dimension of the phenomenon. This article seeks to provide an alternative outlook by offering a large-scale computational analysis of the body of jurisprudence of three international fora (the ICJ, the WTO Appellate Body and investment arbitration tribunals) and comparing their citation patterns with those of other judicial bodies—national and international. Building on a very large dataset (comprising over 200,000 citations), it employs network analysis tools to measure the evolution of international law citation networks. It then unpacks this emerging complexity by considering what, in a precedent, holds ‘citing value’, highlighting the expansion of the range of precedential resources as well as the consecration of established authorities. Finally, the article considers three examples of computational analysis of citations to precedent in order to better gauge the level of engagement with the past.

scholarly journals The Shape and Structure of the ‘Usable Past’: An Empirical Analysis of the Use of Precedent in International Adjudication

2019 ◽  
Vol 10 (2) ◽  
pp. 200-247
Author(s):  
Niccolò Ridi
Keyword(s):  
International Law ◽  
Large Scale ◽  
Computational Analysis ◽  
The Body ◽  
Appellate Body ◽  
Investment Arbitration ◽  
The Icj ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
Usable Past

Abstract How do international adjudicators use precedent? This question has been addressed several times in the literature, but doctrinal accounts have generally failed to consider the aggregate dimension of the phenomenon. This article seeks to provide an alternative outlook by offering a large-scale computational analysis of the body of jurisprudence of three international fora (the ICJ, the WTO Appellate Body and investment arbitration tribunals) and comparing their citation patterns with those of other judicial bodies—national and international. Building on a very large dataset (comprising over 200,000 citations), it employs network analysis tools to measure the evolution of international law citation networks. It then unpacks this emerging complexity by considering what, in a precedent, holds ‘citing value’, highlighting the expansion of the range of precedential resources as well as the consecration of established authorities. Finally, the article considers three examples of computational analysis of citations to precedent in order to better gauge the level of engagement with the past.

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.

A Legal Journey Through the UN, Academia, and the ICJ: Conversations with Dame Rosalyn Higgins DBE, JSD, FBA, QC

2015 ◽  
Vol 15 (2) ◽  
pp. 86-94 ◽  
Author(s):  
Lesley Dingle
Keyword(s):  
International Law ◽  
Formative Period ◽  
International Affairs ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Depth Interview ◽  
The Icj ◽  
Global Peace ◽  
International Adjudication

AbstractThis article, written by Lesley Dingle, is based upon an in-depth interview with Dame Rosalyn Higgins in March 2014. It highlights particular elements that characterise her contribution to legal scholarship and international adjudication, and should be read in the context of the biography presented in the Eminent Scholars Archive: http://www.squire.law.cam.ac.uk/eminent_scholars/dame_rosalyn_higgins.php. Dame Rosalyn Higgins was born in Kensington in 1937. She grew up in London during the Blitz and her matter-of-fact account of these times epitomised her later career: application to the task in hand, and a lack of a sense of expectation. After the War, she passed successively through grammar school, Girton College, Yale and the Royal Institute of International affairs, steadily immersing herself over fifteen years in the work of the United Nations during its formative period. It was on the UN's role as the global peace-keeper and international law-maker that she became the acknowledged authority. There followed a long period of formal academia (1978–95: Kent and LSE), during which she rose to high office. This experience further honed her scholarly and administrative instincts, and she was honoured in 1995 with a DBE. Later that year Dame Rosalyn was appointed to the Bench of the International Court of Justice – the first woman to rise to this position, and in 2006 was elected its President. She retired in 2009.

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.

Part II Interpretation of Treaties, 8 Subsequent Practice as a Means of Interpretation in the Jurisprudence of the WTO Appellate Body

2011 ◽  
Author(s):  
Nolte Georg
Keyword(s):  
Appellate Body ◽  
The Future ◽  
The Icj ◽  
Wto Appellate Body ◽  
Interpretative Approach

While the general interpretative approach of the WTO Appellate Body has been much discussed, its use of ‘subsequent practice’ as a means of interpretation has so far been less focused on. This chapter gives an overview of the pertinent pronouncements by the Appellate Body, relates them to the jurisprudence of the ICJ, and discusses the possible relevance of subsequent practice as an element of interpretation within the WTO system in the future.

Judge Vereshchetin: A Russian Scholar at the International Court of Justice

2006 ◽  
Vol 19 (3) ◽  
pp. 719-740 ◽  
Author(s):  
SERGEY PUNZHIN ◽  
NATHALIE WILES
Keyword(s):  
International Law ◽  
The Body ◽  
Self Determination ◽  
Law Of The Sea ◽  
Judicial Process ◽  
International Court Of Justice ◽  
Diplomatic Protection ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

There are three topics within the body of Vereshchetin's academic work which deserve special attention: the law of the sea, space law, and the theory of international law. Vereshchetin's contribution as a judge to the practice and theory of international law can be appreciated through his individual opinions and declarations, in which he dealt with various issues of international law and the international judicial process: self-determination, countermeasures, diplomatic protection, and questions which concern the functioning of the Court (the role and powers of the ICJ, non liquet, bases for the revision of decisions, declarations accepting the Court's jurisdiction and reservations to them, and so on).

scholarly journals FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law

2017 ◽  
Vol 16 (2) ◽  
pp. 303-326 ◽  
Author(s):  
GREGORY SHAFFER ◽  
L. ALAN WINTERS
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Treaties ◽  
Public International Law ◽  
Trade Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Political Choices ◽  
Wto Appellate Body

AbstractThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision inPeru–Additional Duty on Imports of Certain Agricultural Productsis important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

scholarly journals RULES AND VALUES IN INTERNATIONAL ADJUDICATION: THE CASE OF THE WTO APPELLATE BODY

2019 ◽  
Vol 68 (2) ◽  
pp. 399-441 ◽  
Author(s):  
Oisin Suttle
Keyword(s):  
Institutional Context ◽  
Legal Philosophy ◽  
Trade Regulation ◽  
Appellate Body ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
The Relationship

AbstractCurrent political challenges facing the WTO Appellate Body raise fundamental questions about the relationship between rules and values in international adjudication. This article applies insights from legal philosophy to identify the role values should play in WTO adjudication. It argues that nothing about the specifics of WTO law would justify excluding values from adjudication; that the doctrinal, political and institutional context of WTO adjudication makes a positivist account of the role of values untenable; but an anti-positivist account requires complementing established economic accounts of WTO law's purpose with an account of fairness and justice in trade and trade regulation.

PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP

2010 ◽  
Vol 59 (4) ◽  
pp. 1079-1098
Author(s):  
Alberto Alvarez-Jiménez
Keyword(s):  
Dispute Settlement ◽  
Good Reason ◽  
Positive Development ◽  
Settlement System ◽  
Exclusive Jurisdiction ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
Dispute Settlement System

The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.

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