Valuing Diversity in All Forms in International Courts

2017 ◽  
Vol 111 ◽  
pp. 296-299 ◽  
Author(s):  
Josephine Jarpa Dawuni
Keyword(s):  
International Law ◽  
Interest Group ◽  
Gender Diversity ◽  
International Courts ◽  
International Adjudication ◽  
Intragroup Diversity ◽  
Valuing Diversity

I would like to preface my commentary with two remarks. First, I commend ASIL, the International Courts and Tribunals Interest Group, and other co-sponsors for organizing this important roundtable on valuing women in international law. Second, I thank Nienke Grossman for inviting me to be part of this discussion to bring in the perspective of women from across the continent of Africa. This proves that Grossman's work on gender diversity recognizes intragroup diversity—that women are one, yet also different and bring different ingredients to the making of international law and international adjudication.

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 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.

Aspects of Evidence in International Adjudication

2007 ◽  
pp. 83-118
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
International Courts ◽  
Standard Of Proof ◽  
Rules Of Evidence ◽  
Rules Of Procedure ◽  
Evidence Gathering ◽  
General Principles Of Law ◽  
International Adjudication

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.

The Development of International Law of the Sea by International Courts and Tribunals

2021 ◽  
Vol 9 (1) ◽  
pp. 132-152
Author(s):  
Hua Zhang
Keyword(s):  
International Law ◽  
Normal Function ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Courts ◽  
Marine Environmental Protection ◽  
Administration Of Justice ◽  
International Adjudication ◽  
Marine Environmental ◽  
Law Making

Abstract The development of international law of the sea by international courts and tribunals is generally acknowledged among international lawyers. In retrospect, the creative jurisprudence of international judicial bodies was incorporated into the mainstream of international law-making process in many cases, while the experience of failure cannot be ignored. In the past decade, the strengthening of marine environmental protection has become a tendency in international adjudication. Accordingly, the content and scope of due diligence obligation has been discovered, consolidated and extended. In light of the evolution of due diligence obligation, the methodology of law-making by international judicial bodies includes: inter alia, interpretation, cross-reference of precedents, analogy, and assertion. However, from the perspective of legitimacy, law-making should not become the normal function of international judicial bodies. Bearing in mind international rule of law and good administration of justice, the lawmaking activities of international courts and tribunals should be curtailed in certain degree.

The Emergence of a Common Law of International Adjudication against a Background of Proliferation

2007 ◽  
pp. 15-34
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Common Law ◽  
Third Party ◽  
International Courts ◽  
The Past ◽  
The Creation ◽  
Jurisdictional Competition ◽  
International Adjudication ◽  
Fragmentation Of International Law

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

Beyond Dispute: International Judicial Institutions as Lawmakers

2011 ◽  
Vol 12 (5) ◽  
pp. 979-1003 ◽  
Author(s):  
Armin von Bogdandy ◽  
Ingo Venzke
Keyword(s):  
International Law ◽  
International Courts ◽  
International Legal Order ◽  
Normative Expectations ◽  
Legal Structures ◽  
International Adjudication ◽  
The Individual ◽  
And Shifts ◽  
Legal Normativity

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.

A Procedural Approach to the Legitimacy of International Adjudication: Developing Standards of Participation in WTO Law

2011 ◽  
Vol 12 (5) ◽  
pp. 1175-1202 ◽  
Author(s):  
Michael Ioannidis
Keyword(s):  
International Law ◽  
Special Function ◽  
Significant Part ◽  
International Courts ◽  
Procedural Approach ◽  
International Adjudication

Lawmaking by judicial institutions requires legitimation. As international courts gradually play an ever more significant part in the shaping of international law, they share with any other lawmaker the need for a convincing basis of legitimacy. In the case of international courts, however, this need has to be addressed by taking into account their special function: that is, to review decisions made by other lawmakers (mainly domestic). The question of the legitimacy of judicial institutions is thus crucially connected with the standard they apply in reviewing such decisions.

Remedies in International Adjudication

2007 ◽  
pp. 185-224
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Courts ◽  
Wto Dispute Settlement ◽  
Judicial Remedy ◽  
The Law ◽  
International Adjudication

This chapter considers whether international courts have common approaches to the granting of remedies. It first examines the source of the power to award remedies. It then explains the obligation in international law to make ‘full reparation’, and briefly details the three different forms of reparation (restitution, compensation, and satisfaction). It notes that there is some disagreement on whether each of these is appropriate as a judicial remedy in all cases. The next section cites examples where the various forms of reparation have been awarded in particular disputes, and includes a discussion of the existence of mandatory or consequential orders as a possible remedy. Finally, the chapter examines the availability of remedies in WTO dispute settlement, and notes that although this is largely a lex specialis, there is evidence that the law of reparation has some relevance.

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