International Judicial Decisions Research Articles

Domestic Contestations against International Courts and Tribunals: Introduction to the Special Issue

Abstract Domestic authorities, including national courts, at times, resist accepting the decisions of international courts and tribunals. The formal division between the national and international legal orders creates space for domestic authorities to contest or avoid international binding judicial decisions. The present special issue examines domestic contestations in multiple fields of international law, including human rights and investment law. In contesting some of the international decisions, domestic authorities invoke a wide range of legal bases in resisting the effect of international decisions. The contributions in the present issue examine various such argumentative bases of contestations. The contributions also consider whether domestic resistance could give rise to the opportunity for international courts and tribunals to critically reflect on their own decisions and underlying reasoning.

Normative propositions of the International Tribunal for the Law of the Sea

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

Functions of compensation for human rights violation in international and national judicial decisions

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

Derechos de las víctimas de violaciones a derechos humanos. Una mirada desde la reparación integral y el cumplimiento de sentencias

El trabajo que se plantea en las siguientes líneas parte de la inferencia de que existe un vínculo directo entre las violaciones de derechos humanos, la obligación de reparar el daño y el cumplimiento de las decisiones judiciales internacionales que ordenan tal reparación, pues la propia sentencia y su efectivo cumplimiento constituye una forma de reparación hacia las víctimas de violaciones de derechos humanos.

The Concept of Entitlement to an Exclusive Economic Zone as Reflected in International Judicial Decisions

The article seeks to shed light on a lacuna in the law and international adjudication regarding the entitlement of coastal states to the exclusive economic zone (EEZ), by analysing the implicit requirement in the UN Convention on the Law of the Sea of proclamation to establish such entitlement. The main argument of the article is that despite the requirement for proclamation, there is no definition of this act in international law that clarifies its legal status. Nonetheless, failure to heed the requirement to proclaim an EEZ can affect the establishment of the EEZ, which in turn affects the rights and jurisdictions of coastal states in the zone. It can also affect the competence of judicial institutions to decide on matters such as delimitation of overlapping zones.

Can We Make the Oceans Greener? The Successes and Failures of UNCLOS as an Environmental Treaty

At the conclusion of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, there was considerable optimism that the Convention would usher in a new age of marine environmental protection. This article argues that, while UNCLOS did contain important innovations for marine environmental protections, key structural problems prevented the Convention from fulfilling more optimistic predictions of success. Concepts such as freedom of the high seas and exclusive flag state jurisdiction as well as the lack of an effective institution with competence over the law of the sea generally have impeded progress. Instead, states have relied on incremental development to seek improvements in the law. The article evaluates whether two recent developments will progress the goal of marine environmental protection. First, a number of recent international judicial decisions interpreting treaty and customary principles of international law have clarified and extended state environmental obligations. Second, negotiations for a new treaty on the protection and sustainable use of biodiversity in areas beyond national jurisdiction offer hope that gaps in UNCLOS might be filled.

The International Legal Issue of Attribution of Conduct to a State – The Case Law of the International Courts and Tribunals

The article aims to broaden the subject of the attribution of conduct to a State by pre-senting different grounds for attributing State responsibility. It surveys main the prin-ciples of attribution, which were affirmed in international judicial decisions and specifies circumstances which extend beyond the general rule under which States incur responsi-bility only for the conduct of its organs. The provisions of the Articles on the Responsi-bility of States for Internationally Wrongful Acts constitute a primary point of reference of the research and are followed by examples of their practical application.

Can we Make the Oceans Greener? The Successes and Failures of UNCLOS as an Environmental Treaty

At the conclusion of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, there was considerable optimism that the Convention would usher in a new age of marine environmental protection. This article argues that, while UNCLOS did contain important innovations for marine environmental protections, key structural problems prevented the Convention from fulfilling more optimistic predictions of success. Concepts such as freedom of the high seas and exclusive flag state jurisdiction as well as the lack of an effective institution with competence over the law of the sea generally have impeded progress. Instead, states have relied on incremental development to seek improvements in the law. The article evaluates whether two recent developments will progress the goal of marine environmental protection. First, a number of recent international judicial decisions interpreting treaty and customary principles of international law have clarified and extended state environmental obligations. Second, negotiations for a new treaty on the protection and sustainable use of biodiversity in areas beyond national jurisdiction offer hope that gaps in UNCLOS might be filled.

Prisoners' rights under international law: an aetiological myths

The concept of human rights and prisons has been in existence for a very long period of time. The longstanding retributive penology was centred on the view that prisoners are without legal rights. Nowadays, human rights instruments were enacted to protect the rights of all persons including prisoners who are in custody of the state. Despite these instruments, courts were reluctant to enforce prisoners' rights especially where the violation of rights occurred in prison. This study therefore, determines when did human rights laws start recognising prisoners' rights despite the fact that they are behind bars? Secondly, when did 'hands-off' doctrine disappear? This is because in the USA, there is inconsistency as to which of the court's decision was the first to uphold the right of prisoners. The methodology adopted is content analysis approach wherein related literature were discussed and analysed particularly the international laws, judicial decisions and other relevant documents.

RESPONSIBILITY FOR THE TRANSPORTATION, STORAGE AND CIRCULATION OF HAZARDOUS MATERIALS

The problems of environmental protection have attracted the attention of of natural and biological sciences researchers for a long time, but the jurisprudence has been relatively late in the modern era. Take note of the legal problems posed by threats to the environment. On the environmental level, the problem of environmental pollution has become one of the most important problems affecting humans in modern times because of its harmful effects on both living and non-living organisms. At the international level, the State asks about the damage caused by environmental pollution to the international community, which is based on a set of legal rules that find their main source in international conventions, general principles of law and international judicial decisions in the field of environmental protection, and in the field of determining international liability for environmental pollution damage. From the legal point of view, the classification in Egypt according to Law 4/1994 and its amendments and its executive regulations is limited in light of the emergence of the international codes and the global guidelines in the field of hazardous materials which are comprehensive for all types of hazardous materials and capable of absorbing new ones. Therefore, the current study aims at clarifying all responsibility related to the transport, storage and handling of hazardous materials. The problem of the study is to know the adequacy and adequacy of Egyptian environmental law to classify hazardous substances and wastes and to appoint the concerned body and its responsibility for these materials and compensation for damages resulting from such wastes. Based on the problem of the study, the researchers in this study relied on the combination of the inductive method and the method of analyzing the results. The researchers conducted personal interviews with the officials in the [Holding Company for Maritime Transport and Container Handling in Damietta Port - Civil Protection Department in Damietta Port - Department of Safety and Occupational Health - the competent Environmental Affairs Agency (observer) Transport, storage and storage of hazardous materials. The results of the study that it is necessary to deepen the cooperation between the management of hazardous materials at the port and all security authorities inside and outside the port. As for the rules of liability resulting from the sources of environmental pollution, it is deficient and ambiguous, and in the end requires a radical development in line with contemporary global developments and in accordance with the era of the environment. It can not be denied that the civil liability regime in its free status continues to play an effective role in protecting the environment in its various dimensions. The need to include laws and ministerial decrees on the protection of the environment to the provisions of international laws and norms concerning the protection of the environment from the hazards of hazardous materials, taking into account the continuous raising of public awareness of the dangers and controls of the use of hazardous substances on the local clock. This is to expand the citizen's information base on the rules of safety and civil protection with the signs of dangerous goods. The present study recommends that citizens should be notified of the signs of dangerous goods and how they should be selected according to the classification prepared for this purpose. And the work of a comprehensive system of linking between similar departments in ports similar to cooperation and exchange of experiences at the level of the Egyptian country. Public awareness programs must be activated and school curricula, for example, should be implemented to preserve the environment and make it always green and to activate the role of environmental laws.

Swinging between finding and justification: judicial citation and international law-making

Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.

The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order)

Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the US and the European Union EU toward the rule of international law. Critics have argued that the US had abandoned its post-war role as the champion of the international legal order, being instead characterized by a “new sovereigntism” that seeks to protect the US from unwelcome intrusions of international law into the domestic legal order. By contrast, the EU has been seen as inherently committed to the rule of law and a strong international legal order. The aim of this paper is not to attack, much less to debunk, the conventional dichotomy between a scofflaw America one the one hand and an international law-loving Europe on the other. The more limited aim of this paper, rather, is to suggest that European attitudes towards international law may be changing, and that the EU is developing a European variant of the American new sovereigntism, in which a growing number of critics – concentrated primarily, though not only, among the pro-European left and center-left – have raised fundamental procedural and substantive objections to international rules and norms, which they depict as hostile to European laws and values, and against which they champion a defiant resistance. In a growing number of areas of international law, including international trade, economic regulation, food safety, data privacy, and national security, the European center-left has moved towards a sharply critical view of international law, alternatively resisting consent to unwelcome agreements, compliance with unwelcome international judicial decisions, and internalization of international laws perceived to be in tension with domestic EU rules and rights. These changing attitudes towards international law, in turn, have been magnified and translated into policy outcomes through the EU’s “hyper-consensus” political institutions, which have created multiple veto points empowering European critics to defy and deflect the intrusion of unwelcome international legal norms, rules, and agreements.

Swinging between Finding and Justification: Judicial Citation and International Law-Making

Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.

Judicial Precedent and its Authority Under International Law

This article focuses on the Judicial Precedent and its authority under International Law. In this context, the historical background and actual authority of precedent in England and USA is analyzed. While the existence of binding precedent in International law remains a point of continuous debate, countries observably behave in a manner consistent with its existence. By analyzing the practices of international criminal court (ICC) and tribunals, such as, ICTR and ICTY, it argues that judicial decisions at International level are not binding. Further, this work discusses the practice of International Court of Justice (ICJ) in detail. It concludes that there is no formal binding precedent in International law and judicial decisions of the World Court are not binding but are taken into consideration by States. Finally, it argues that the precedent in World Court has developed International law and has significant place in international adjudication.

The Aegean Dispute in the Context of Contemporary Judicial Decisions on Maritime Delimitation

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the principal international law document, which regulates the establishment of the maritime economic zones, namely the Continental Shelf (CS) and the Exclusive Economic Zone (ΕΕΖ) as well as any issues that may come up during their delimitation. Maritime delimitation issues are settled either through state agreements or through legal redress before the respective international tribunals. In this context, the aim of this paper is to elaborate on the delimitation prospect concerning a Greek CS/EEZ based on contemporary conventional and customary international law of the sea, in addition to contemporary judicial decisions. More specifically, the analysis focuses on dispute issues in the region of the Aegean Sea and the Eastern Mediterranean, between Greece and its neighboring country Turkey, concerning the CS/EEZ delimitation. An attempt is made to critically compare this case to the outcome of recent relevant international judicial decisions by highlighting not only the common points but also any differences and complexities. The main purpose is to render the reader aware of the special treatment needed for the case in question, with the expectation for a fair future delimitation of the Greek maritime economic zones.

International peace and security, human rights and the courts: a critical re-appraisal

The question of primacy of Security Council resolutions over human rights norms is a matter of compelling legal significance. This becomes evident from the wealth of national and international judicial decisions involving challenges against Security Council-authorised action as interfering with fundamental rights. The article provides a critical legal reappraisal of such rulings with main emphasis on Behrami/Saramati, Al Jedda and Kadi/Al Barakaat. It concludes that courts have not always taken a uniform position weakening the effectiveness of human rights protection. Furthermore, the Security Council needs to take appropriate action to ensure respect for these fundamental principles.

Beyond Dispute: International Judicial Institutions as Lawmakers

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.

Universal Jurisdiction for International Core Crimes: Recent Developments in Belgium

Belgian legislation gives the national criminal justice system far reaching competence to prosecute international core crimes. International and national judicial decisions as well as policy considerations may however dictate restrictions.

The Implementation of International Judicial Decisions by Domestic Courts

The Implementation of International Judicial Decisions by Domestic Courts

REVIEWS

Book reviewed in this article:Other Peoples' Law. By The Hon. Lord Kilbrandon.Enforcing the Law. By R. M. Jackson.Studies in Israel Private Law. By Guido Tedeschi.Studies in Isreal Legislative Problems. Edited by Guido Tedeschi and U. Yadin.Phipson's Manual of the Law of Evidence. Ninth edition. By D. W. Elliott.Roman Litigation. By J. M. Kelly.Aspects of the Actio Iniuriarum in Roman‐Dutuch Law. By C. F. Amerasinghe.The Law, Procedure and Conduct of Meetings in South Africa. Third edition. By A. Lewin.Cases in the Muhammadan Law of India and Pakistan. By Asaf A. A. Fyzee.The Swedish Conflict of laws. By Hilding Eex.The Law Relating to Bankers' Letters of Credit. By B. C. Mitra, Barrister‐at‐Law.The Family and the Law. By Margaret Puxon.The Law of the Sea and Australian Off‐Shore Areas. By R. D. Lumb, LL.M. (Melb.), D.Phil. (Oxon.)Federalism and Supranational Organisations. By Peter HayWhen Americans Complain: Governmental Grievance Procedures. By Walter Gellhorn.Resale Price Maintenance in Practice. By J. F. Pickering.The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law. By E. K. Nantwi.