Domestic Courts As Agents of Development of the International Law of Jurisdiction

2013 ◽  
Author(s):  
Roger O'Keefe
Keyword(s):  
International Law ◽  
Domestic Courts

Ireland

2018 ◽  
Author(s):  
Eilionóir Flynn
Keyword(s):  
Mental Health ◽  
International Law ◽  
Health Law ◽  
Disability Rights ◽  
Eu Law ◽  
Persons With Disabilities ◽  
Unique Position ◽  
Domestic Courts ◽  
Employment Equality ◽  
The Impact

Ireland’s constitution adopts a dualist approach to international law. It is in a unique position as a state which has not ratified the Convention on the Rights of Persons with Disabilities (CRPD), but one which is obliged to adhere to the provisions of the CRPD in EU law, by virtue of the EU’s conclusion of the CRPD in 2010. To date, the CRPD has been referenced in a number of cases before the Irish courts in the context of employment equality law and mental health law. This chapter examines the extent of the impact that the CRPD can have on the judgments of domestic courts on disability rights in advance of the state’s ratification of the Convention.

Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

2014 ◽  
Vol 14 (2) ◽  
pp. 358-376
Author(s):  
Marcel Brus
Keyword(s):  
Human Rights ◽  
International Law ◽  
Domestic Court ◽  
Core Element ◽  
International Crimes ◽  
State Immunity ◽  
Domestic Courts ◽  
Humanitarian Ethics ◽  
The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

Do International Organizations Enjoy Immunity Under Customary International Law?

2014 ◽  
Vol 10 (2) ◽  
pp. 287-318 ◽  
Author(s):  
Michael Wood
Keyword(s):  
Nineteenth Century ◽  
General Practice ◽  
International Law ◽  
Present Article ◽  
International Organizations ◽  
Historical Development ◽  
Customary International Law ◽  
Domestic Courts

The present article considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This article sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

The Puzzle of Atrocity Criminalization

2020 ◽  
pp. 1-24
Author(s):  
Mark S. Berlin
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Courts ◽  
Qualitative Case Studies ◽  
National Courts ◽  
Domestic Courts ◽  
Quantitative Analyses

Why do governments take atrocity offenses, like genocide, war crimes, and crimes against humanity, from international law and legislate them into domestic criminal law, empowering national courts to prosecute their own, and sometimes other states’, government and military officials? The question is important, because the international community has constructed an international legal regime to prosecute the most serious human rights violations, but that regime is designed to rely primarily on domestic criminal courts to try offenders. To fulfill this role, domestic courts often require specific legislation that defines and criminalizes these offenses in national law. Yet, the adoption of national atrocity laws is puzzling, since in a number of ways, these laws appear to threaten states’ interests. This introductory chapter highlights the puzzle of atrocity criminalization and discusses its importance for the functioning of the international atrocity regime. It then situates this study in existing literatures and highlights the book’s contributions to research on atrocity justice, human rights, and international law. Next, it summarizes the book’s main arguments and details the study’s multi-method research design, which combines quantitative analyses of new, original datasets with in-depth qualitative case studies of Guatemala, Colombia, Poland, and the Maldives.

Civil Suits

2020 ◽  
pp. 315-339
Author(s):  
Beth Van Schaack
Keyword(s):  
United States ◽  
International Law ◽  
Criminal Liability ◽  
The United States ◽  
Public Authorities ◽  
Sovereign State ◽  
Domestic Courts ◽  
The Matrix ◽  
The Icj ◽  
Convention Against Torture

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities and options for exercising jurisdiction over the sovereign state of Syria. Because there is no notion of state criminality under international law, only civil claims seeking money damages can be advanced against sovereign states. Jurisdiction over Syria exists before the International Court of Justice (ICJ) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; however, so far no state has been willing to take Syria to task before the ICJ. And so, victims must bear this burden. In this regard, some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over certain international law violations in certain circumstances. This chapter features a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act, which resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The chapter observes that although civil remedies are no substitute for vigorous criminal liability, these suits do extend victims some dignitary benefits that may not accrue with participation in a criminal process, even as a partie civile, including the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so.

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.

House Approves Proposal Permitting ICJ to Advise Domestic Courts

1983 ◽  
Vol 77 (2) ◽  
pp. 338-340
Author(s):  
Jack M. Goldklang
Keyword(s):  
International Law ◽  
House Of Representatives ◽  
National Court ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Courts ◽  
The Icj ◽  
Advisory Opinions

On December 17, 1982, the House of Representatives adopted a resolution supporting an expansion of the advisory opinion jurisdiction of the International Court of Justice. The resolution (H.R. Con. Res. 86) urges the President to explore the appropriateness of establishing a United Nations committee to seek advisory opinions from the ICJ. The committee would act when asked by a national court seeking advice regarding any international law question under the national court’s jurisdiction.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 29 Restrictions on the Jurisdiction of Military Courts

2018 ◽  
Author(s):  
Aoláin Fionnuala Ní
Keyword(s):  
Human Rights ◽  
International Law ◽  
Theoretical Framework ◽  
Historical Background ◽  
Human Rights Violations ◽  
Humanitarian Law ◽  
Domestic Courts ◽  
Military Law ◽  
The Right ◽  
The Military

Principle 29 deals with restrictions on the jurisdiction of military courts. Under this Principle, the adjudication of human rights violations by military courts is explicitly excluded, and ordinary domestic courts are mandated as the only appropriate venue of judicial oversight. Nevertheless, military courts remain functionally important for the routine and uncontroversial deployment of military law consistent with international law. The chapter first provides a contextual and historical background on Principle 29 before discussing its theoretical framework and how military courts are used in various countries such as Ireland and Turkey. Issues arising when civilians find themselves within the jurisdiction of military courts are also examined, along with the difficulties of ensuring fair trials in military courts. This chapter shows that military courts, while certainly serving important functions within the military forces of states, remain subject to human rights and humanitarian law compliance.

Domestic Jurisdiction over International Financial Institutions for Injuries to Project-Affected Individuals

2019 ◽  
Vol 16 (1) ◽  
pp. 105-136
Author(s):  
Clemens Treichl ◽  
August Reinisch
Keyword(s):  
International Law ◽  
Financial Institutions ◽  
Dispute Settlement ◽  
Project Finance ◽  
International Financial Institutions ◽  
International Dispute ◽  
The Us ◽  
Us Supreme Court ◽  
Domestic Courts ◽  
Domestic Jurisdiction

Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope. This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction. A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.

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