An International Jurisprudence? The Operation of “Precedent” Across International Tribunals

2002 ◽  
Vol 15 (3) ◽  
pp. 483-526 ◽  
Author(s):  
Nathan Miller
Keyword(s):  
International Law ◽  
Variable Frequency ◽  
Similar Treatment ◽  
International Courts ◽  
Explicit Reference ◽  
International Tribunals ◽  
Fragmentation Of International Law

Amid the proliferation of international judicial and quasi-judicial bodies, worries about the possible fragmentation of international law are increasing. Such fears, however, may be misplaced. A close examination of the jurisprudence of nine international judicial bodies, looking specifically for instances of explicit reference to one another's decisions, shows the practice to be widespread, of variable frequency and covering both procedural and substantive issues. Taken in conjunction with other scholarship about the similar treatment of important doctrines across all (or most) bodies, this study suggests that unity, not fragmentation, may emerge from the proliferation of international courts and tribunals.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

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.

The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?

2006 ◽  
Vol 19 (1) ◽  
pp. 223-246 ◽  
Author(s):  
NIKOLAOS LAVRANOS
Keyword(s):  
International Law ◽  
Arbitral Tribunal ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
The Creation ◽  
Fragmentation Of International Law ◽  
The Unclos

The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.

The Clean Hands Doctrine as a General Principle of International Law

2020 ◽  
Vol 21 (4) ◽  
pp. 489-527
Author(s):  
Patrick Dumberry
Keyword(s):  
International Law ◽  
General Principle ◽  
South American ◽  
International Courts ◽  
International Tribunals

Abstract The question of the scope and application of the doctrine of clean hands by investment tribunals is controversial. This article examines how scholars, international courts and tribunals and investment tribunals have analysed the concept. I will show that while the doctrine has rarely been used by international tribunals, they have nonetheless recognised and applied the clean hands doctrine in several awards. I will critically assess the reasoning of the Yukos award and, most importantly, the recent South American Silver Limited award, which have both held that the clean hands doctrine is not a general principle of law. I will argue, like many writers, that the doctrine should be considered as a general principle of international law. The article examines this concept and describes how such principles emerge on the international plane in a manner different from general principles grounded in the domestic laws of States.

scholarly journals Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia

2008 ◽  
Vol 21 (1) ◽  
pp. 95-112 ◽  
Author(s):  
RICHARD J. GOLDSTONE ◽  
REBECCA J. HAMILTON
Keyword(s):  
International Law ◽  
International Criminal Tribunal ◽  
International Court Of Justice ◽  
International Courts ◽  
Criminal Convictions ◽  
Legal Standard ◽  
International Court ◽  
The Icj ◽  
Fact Finding ◽  
Fragmentation Of International Law

AbstractThis article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

Farewell to the f-word? fragmentation of international law in times of the COVID-19 pandemic

2021 ◽  
pp. e20210007
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Test Case ◽  
International Courts ◽  
Post Cold War ◽  
International Response ◽  
International Legal Order ◽  
Negative Impacts ◽  
Fragmentation Of International Law

The proliferation of international legal regimes, norms, and institutions in the post-Cold War era, known as the ‘fragmentation’ of international law, has sparked extensive debate among jurists. This debate has evolved as a dialectical process, seeing legal scholarship shifting from grave concern about fragmentation’s potentially negative impacts on the international legal order to a more optimistic view of the phenomenon, with recent literature suggesting that the tools needed to contain fragmentation’s ill-effects are today all at hand, thus arguing that the time has come ‘to bid farewell to the f-word.’ Drawing on the COVID-19 crisis as a test case and considering the unresolved problems in existing fragmentation literature that this crisis brings to the fore, this article asks whether such calls have perhaps been premature. Existing works on fragmentation, the article submits, including those bidding farewell to the f-word, have mainly focused on the problems of conflicts between international norms or international institutions, especially conflicts between international courts over competing jurisdictions and interpretations of law. But, as the COVID-19 case – and, particularly, the deficient cooperation marked between the numerous international organizations reacting to the crisis – shows, the fragmentation of the international legal order does not only give rise to the potential consequences of conflicts of norms and clashes between international courts. Fragmentation also gives rise to pressing challenges of coordination when a proactive and cohesive international response is required to address global problems like COVID-19, which cut across multiple international organizations playing critical roles in the creation, administration, and application of international law. By foregrounding cooperation between international organizations as a vital-yet-deficient form of governance under conditions of fragmentation, the article argues, the COVID-19 crisis not only denotes that the time is not yet ripe to bid farewell to the f-word. It further points to the need to expand the fragmentation debate, going beyond its conflict- and court-centred focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.

How Often Must We Re-Invent the Wheel? Reflections on the Most Efficient Structure of Prosecution Offices in International Courts and Why It is Not Generally Used

2017 ◽  
Vol 30 (4) ◽  
pp. 987-1002
Author(s):  
RUTH BETTINA BIRN
Keyword(s):  
Best Practices ◽  
International Law ◽  
Structural Models ◽  
International Courts ◽  
Structural Framework ◽  
International Tribunals ◽  
Nuremberg Trials

AbstractAre historians or other country specialists needed in the investigation and prosecution of crimes under international law? Experiences at international tribunals, from the Nuremberg Trials to the present, offer different answers to this question. This article argues that country specialists are indispensable and demonstrates how, time and again, in international or national settings, practical necessities have led to structural models in which lawyers, investigators and country specialists work together. A ‘best practices’ model for interdisciplinary investigations adopted by a group of national and international prosecution units is presented in detail. When creating new international tribunals, the UN did not incorporate this model. What is needed for future tribunals is a structural framework of the Office of the Prosecutor, which includes country specialists.

scholarly journals The Judicial Trilemma visits Latin American Judicial Politics

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 354-358
Author(s):  
Mauricio Guim
Keyword(s):  
International Law ◽  
Latin American ◽  
Judicial Politics ◽  
International Courts ◽  
Low Level ◽  
The Third ◽  
Hard Choice ◽  
Dynamic Relations ◽  
International Tribunals ◽  
The Cost

The Judicial Trilemma, by Jeff Dunoff and Mark Pollack, studies the dynamic relations between accountability, transparency, and independence, and suggests that designers can only maximize two of these three values at once. They can create a court that has high levels of (1) independence and accountability, (2) transparency and independence, or (3) accountability and transparency, but only at the cost of having a low level of the third value. The article explores these ideas using four different international tribunals, but its insights are not limited to international courts. Domestic designers also have to decide what levels of accountability, independence, and transparency their courts should have, and in making a decision they will face the Judicial Trilemma and confront the hard choice of selecting primarily two out of three values.

scholarly journals Fragmentation of international law paradigm and conflict of jurisdictions of international courts with special reference to the European Court of Justice

2020 ◽  
Vol 54 (4) ◽  
pp. 1203-1230
Author(s):  
Sanja Đajić
Keyword(s):  
International Law ◽  
European Court Of Justice ◽  
International Courts ◽  
The Third ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
The One ◽  
Fragmentation Of International Law ◽  
The Eu

Fragmentation of international law can be studied from a variety of perspectives and the one chosen for this research is whether and how the conflict of jurisdictions (or other types of conflicts, in terms of interpretation or enforcement) of international judicial and quasi-judicial bodies affect the unity of international law. While the answer might seem to be too obvious to justify the question, it is still not to be too easily assumed. The second issue discussed in this paper is whether and to what extent the external authority of an international court affects the resolution of a conflict. Both issues are too grand for a single paper so the research will be focused solely on three case studies involving the European Court of Justice: Mox Plant, Kadi and Achmea cases. In all three of them the EU Court of Justice clashed with another adjudicative authority and prevailed in the first two but seems to have lost a battle in the third. The article explores the reasons for these outcomes relying inter alia on the concept of external authority of a judicial institution. These findings are coupled with discussion on how these outcomes can be assessed from the perspective of (de)fragmentation of international law.

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