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Chapter

This chapter examines the relationship between international and national law. It discusses the approach of international courts and tribunals; the approach of national parliaments and national courts; and some problems that arise in national courts. While prospects for a harmonized approach to the relationship between international and national law are dim, conflict can be avoided through the close involvement of international lawyers in the treaty-making and ratification process; attention at the time of ratification to implementation questions; the teaching of international law as part of the professional training of judges; and expert assistance to national courts when international law questions arise.

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The International Court of Justice (ICJ), which is defined in the UN Charter as the ‘principal judicial organ’ of the United Nations, is a standing mechanism for the peaceful settlement of disputes between States. It may also give advisory opinions on the law, at the request of the Security Council and General Assembly, or of other UN organs and specialized agencies that are so authorized by the General Assembly. No dispute can be the subject of a decision of the Court unless the States parties to it have consented to the Court’s jurisdiction over that specific dispute. This chapter discusses the history, structure, and composition of the Court, the ways in which jurisdiction is conferred upon it, its procedure, and the nature and effect of decisions (judgments and advisory opinions) of the ICJ.

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This chapter begins with a discussion of the ‘declaratory’ and ‘constitutive’ views of recognition. According to the declaratory view, the legal effects of recognition are limited: recognition is a declaration or acknowledgement of an existing state of law and fact, legal personality having been conferred previously by operation of law. The declaratory theory of recognition is opposed to the constitutive view, according to which the political act of recognition is a precondition of the existence of legal rights: in its extreme form this implies that the very personality of a state depends on the political decision of other states. Discussion then turns to the distinction between recognition of states and recognition of governments, collective non-recognition and sanctions, and issues of recognition before national courts.

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This chapter examines the methods by which States prevent their national courts from deciding disputes that relate to the internal affairs of another State. It considers three main ‘avoidance techniques’: State immunity, act of State, and non-justiciability. It discusses the arguments for and against the current prohibition on the determination of one State’s disputes in the national courts of another State, and identifies the challenges presented by the rule of law, an individual’s right of access to court, and the implementation of jus cogens norms to the maintenance of these avoidance techniques. It concludes with the observation that the pendulum continues to swing between prioritizing sovereignty by protecting the activities of States from judicial scrutiny and calling for greater accountability and remedies for violations of international law.

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This chapter discusses the development of international criminal law and institutions, international criminal courts and tribunals, and international criminal justice in national courts. These developments respond to but also reflect repeated failures to prevent serious violations of human rights and international humanitarian law. The work of the International Criminal Court, specialized criminal tribunals and ‘hybrid’ tribunals is outlined.

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This chapter discusses the third party settlement of international disputes. It covers arbitration and the origins of international dispute settlement; the idea of judicial settlement of international disputes; the International Court of Justice, interstate arbitration, dispute settlement under UNCLOS, the WTO dispute settlement body, and international investment tribunals.

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This chapter considers preliminary issues, involving both jurisdiction and admissibility, before international courts and tribunals. It discusses prior negotiations, the requirement of a dispute, grounds of inadmissibility, diplomatic protection, and mixed claims.

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This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the concept of a treaty; the anatomy of treaties (including the making of treaties; authority to conclude treaties; expression of consent to be bound; invalidity of treaties (non-absolute grounds for invalidity of treaties, absolute grounds for invalidity of treaties, amendment, and modification); suspension and termination). The key issues addressed include the scope of legal obligation (the principle pacta sunt servanda, treaties, and third States); interpretation and reservation to treaties (including interpretative declarations); and finally, problems concerning the grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, with special emphasis on jurisprudence of the International Court of Justice.

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This chapter discusses the sources of international law, as reflected in Article 38 of the Statute of the International Court of Justice, and covers international custom, treaties, general principles of law, and judicial decisions. It also describes other material sources: the conclusions of international conferences, resolutions of the UN General Assembly, the writings of publicists, and codification and the work of the International Law Commission, concluding with other considerations applicable in judicial reasoning.

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This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

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This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

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Anthea Roberts and Sandesh Sivakumaran

The classic starting point for identifying the sources of international law is Article 38 of the ICJ Statute, which refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how sources operate in practice, international lawyers need to understand how international law is created through a dialogue among States, State-empowered entities, and non-State actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory —and reality—of the sources of international law.

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A State’s administrative, judicial, executive and legislative activity is part of the exercise of its sovereignty, sometimes known as its jurisdictional sovereignty. This chapter examines the objects of a State’s jurisdictional sovereignty (both natural and legal persons) and the circumstances in which it may be exercised. It considers the general principles of jurisdiction; grounds for the assertion of jurisdiction by national courts; and state jurisdiction and persons apprehended in violation of international law.

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Course-focused and comprehensive, the Textbook on series provide an accessible overview of the key areas on the law curriculum. International law deals with the legal relations between sovereign states while national law deals with the legal relations of individuals within a state. However, there are cases when two legal systems overlap, such as whether British courts can invoke the principles of international law to resolve civil or criminal matters. This chapter examines the relationship between international law and national law and the issues associated with their overlap. It considers how national law affects decisions before international courts and how international law affects decisions before national courts. The chapter first looks at three theories that explain the relationship of international law and national law, namely: monism, dualism, and subject matter. It then explores international law in the national law of the United Kingdom, with an emphasis on treaties and similar international instruments, together with executive certificates and ministerial discretion.

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This chapter explores the concept of immunities. Immunity from jurisdiction describes the doctrines developed in domestic courts over time to avoid infringements on State sovereignty whenever possible. Generally speaking, immunities seek to prevent foreign courts from exercising jurisdiction regarding the conduct of another State, its agents, officials, or diplomatic representatives, as well as from adjudicating on inter-State disputes without their consent. Due in part to the historical conflation of State and sovereign that defined the scope of immunity, several mechanisms have been developed that allow various categories of officials of States to invoke immunity in the courts of another State. Often an exemption from local jurisdiction exists in relation to mundane violations such as driving offences or administrative matters. However, exemption from jurisdiction has important policy implications if the act in question would constitute an international crime.

Chapter

This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.

Chapter

An international legal order must have rules in regard to the settlement of disputes. These rules are particularly necessary in an international community where States are not equal in terms of diplomatic power, access to weapons or access to resources, and where there is the potential for massive harm to people and to territory. This chapter discusses the general obligation on States; non-judicial settlement procedures; arbitration; specific international tribunals; the International Court of Justice and its interaction with the Security Council.

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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. The closest thing to a manifesto for international law is the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, adopted by the UN General Assembly in 1970 as resolution 2625 (XXV). This chapter first examines the seven basic principles of the resolution: the prohibition on the threat or use of force; the duty to settle disputes peacefully; the duty of non-intervention; the duty to co-operate; (v) the principle of equal rights and self-determination of peoples; the principle of sovereign equality of States; and (vii) the principle of good faith. The discussions then turn to the nature of the Declaration; provisions on State responsibility; the implementation of international responsibility; personality and the scope of application of international law; international law in domestic courts; international law in international tribunals; the diplomatic protection of nationals; and international law outside tribunals.

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This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve peacefully their disputes and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary-General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (e.g. compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.

Chapter

This chapter discusses some of the more relevant methods for peaceful dispute settlement. It begins by introducing a number of non-adjudicatory settlement mechanisms and providing a brief overview of the role played by the UN. It then discusses the adjudicatory means of settling disputes, including international arbitration; the competences and powers of the International Court of Justice; issues of access to the Court and the Court’s jurisdiction in contentious cases; the power of the Court to issue provisional measures; the effects of the Court’s decisions; the relationship between the Court and the UN Security Council; and the Court’s competence to issue advisory opinions.