From the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent

For more than a decade, the Council of Europe has expressed deep concern over irregular migrants’ poor access to basic social rights. With this in mind, I consider the extent to which the European Convention on Human Rights can contribute to protect irregular migrants in the social sphere. To this end, I consider the role of international supervisory bodies in social rights adjudication and discuss the suitability of international adjudication as a means to uphold irregular migrants’ social rights. Having reached the conclusion that international adjudication can help protect irregular migrants’ social rights, I examine the ‘social dimension’ of the European Convention on Human Rights and the significance that the European Court of Human Rights attaches to immigration status. I posit that the importance that the Court attaches to resource and immigration policy considerations in N v. United Kingdom significantly constrains the ability of the European Convention on Human Rights to afford irregular migrants protection in the social sphere.

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The Prospects of International Adjudication. By C. Wilfred Jenks. [London: Stevens & Sons; Dobbs Ferry, New York: Oceana Publications. 1964. xl, 777 and (index) 27 pp. £6 17s. 6d. net.]

The Cambridge Law Journal ◽

10.1017/s0008197300014112 ◽

1966 ◽

Vol 24 (1) ◽

pp. 136-139

Author(s):

D. W. Bowett

Keyword(s):

New York ◽

International Adjudication

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International Economic Law Tribunals and Global Social Justice

The Law and Development Review ◽

10.1515/ldr-2021-0101 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Frank J. Garcia

Keyword(s):

International Economic ◽

Social Justice ◽

Social Issues ◽

Structural Features ◽

The Core ◽

Economic Law ◽

International Economic Law ◽

The Law ◽

Principles Of Justice ◽

International Adjudication

Abstract International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.

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China and International Adjudication

10.5771/9783748925620 ◽

2021 ◽

Author(s):

Thomas S. Eder

Keyword(s):

South China Sea ◽

International Law ◽

South China ◽

Case Law ◽

Comprehensive Analysis ◽

Legal Order ◽

Great Power ◽

Law Of The Sea ◽

International Legal Order ◽

International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

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