Andrew Kuper
- Published in print:
- 2004
- Published Online:
- November 2004
- ISBN:
- 9780199274901
- eISBN:
- 9780191601552
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274908.003.0005
- Subject:
- Political Science, International Relations and Politics
How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) ...
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How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) the jurisdiction of the International Court of Justice; (3) membership in, and decision procedures of, the UN General Assembly and Security Council; and (4) structures and methods of corruption control by Transparency International. Along the way, the chapter refutes those arguments about funding and sovereignty that hamper the establishment of stronger World Courts; it develops nine criteria for including non-state actors in institutions of global governance; it suggests new ideas for holding corporations and nongovernmental organizations accountable; and it explores how short-term and long-term obstacles to reform can be overcome.Less
How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) the jurisdiction of the International Court of Justice; (3) membership in, and decision procedures of, the UN General Assembly and Security Council; and (4) structures and methods of corruption control by Transparency International. Along the way, the chapter refutes those arguments about funding and sovereignty that hamper the establishment of stronger World Courts; it develops nine criteria for including non-state actors in institutions of global governance; it suggests new ideas for holding corporations and nongovernmental organizations accountable; and it explores how short-term and long-term obstacles to reform can be overcome.
Sydney D. Bailey and Sam Daws
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198280736
- eISBN:
- 9780191598746
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280734.001.0001
- Subject:
- Political Science, International Relations and Politics
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and ...
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The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.Less
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.
Andrew Kuper
- Published in print:
- 2004
- Published Online:
- November 2004
- ISBN:
- 9780199274901
- eISBN:
- 9780191601552
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274908.001.0001
- Subject:
- Political Science, International Relations and Politics
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously ...
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Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.Less
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0004
- Subject:
- Law, Public International Law, Legal Profession and Ethics
The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack ...
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The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack specificity as to the exact procedures to be followed. This chapter seeks to shed light on the nomination process, in the words of insiders who have been directly involved as candidates or potential candidates, decision-makers, or observers. The information gathered was drawn from a sample of the state parties of the two courts, with the aim of representing the range of approaches taken by states. It is shown that some insiders lack detailed understanding of the nomination processes even in their own states; as a result, accounts are fragmented and contradictory, and only a few well-informed insiders appear to be familiar with the details.Less
The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack specificity as to the exact procedures to be followed. This chapter seeks to shed light on the nomination process, in the words of insiders who have been directly involved as candidates or potential candidates, decision-makers, or observers. The information gathered was drawn from a sample of the state parties of the two courts, with the aim of representing the range of approaches taken by states. It is shown that some insiders lack detailed understanding of the nomination processes even in their own states; as a result, accounts are fragmented and contradictory, and only a few well-informed insiders appear to be familiar with the details.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0002
- Subject:
- Law, Public International Law, Legal Profession and Ethics
The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are ...
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The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are no principles or rules of general application governing the selection of judges at international level and there has been no clear elaboration of any one particular model of judicial selection. Different processes have developed for each court, arising from the particular circumstances in which it was established, and states have developed a heterogeneous set of models borrowed and adapted from one court to another. This chapter traces the key stages in the emergence of the various international judicial selection processes of the International Court of Justice (ICJ) and the International Criminal Court (ICC).Less
The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are no principles or rules of general application governing the selection of judges at international level and there has been no clear elaboration of any one particular model of judicial selection. Different processes have developed for each court, arising from the particular circumstances in which it was established, and states have developed a heterogeneous set of models borrowed and adapted from one court to another. This chapter traces the key stages in the emergence of the various international judicial selection processes of the International Court of Justice (ICJ) and the International Criminal Court (ICC).
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0003
- Subject:
- Law, Public International Law, Legal Profession and Ethics
Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and ...
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Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and rules about the composition of the bench as a whole; the available pool of candidates; and the practice and priorities of member states. This chapter reviews the interplay of these factors as they affect the ICJ and the ICC. It also considers current debates and trends in relation to the composition of international courts more generally, including questions about the composition of the bench as a whole, in terms of geographic representation and the place of the five permanent members of the UN Security Council; the representation of different legal systems; the need for certain types of legal expertise and a particular combination of legal experience on the bench; and the promotion of gender balance.Less
Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and rules about the composition of the bench as a whole; the available pool of candidates; and the practice and priorities of member states. This chapter reviews the interplay of these factors as they affect the ICJ and the ICC. It also considers current debates and trends in relation to the composition of international courts more generally, including questions about the composition of the bench as a whole, in terms of geographic representation and the place of the five permanent members of the UN Security Council; the representation of different legal systems; the need for certain types of legal expertise and a particular combination of legal experience on the bench; and the promotion of gender balance.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0006
- Subject:
- Law, Public International Law, Legal Profession and Ethics
Proposals for reform of the selection processes of the international judiciary command considerable support in certain quarters, but face real political hurdles. For this reason, reforms to date have ...
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Proposals for reform of the selection processes of the international judiciary command considerable support in certain quarters, but face real political hurdles. For this reason, reforms to date have been uneven, making it difficult to identify clear trends. In some courts, such as the ICJ, very little change has occurred. In others, such as the European Court of Human Rights (ECtHR), considerable efforts have been made in recent years to improve the processes. Despite the very disparate nature of the developments, it is possible to discern two tiers of principles at play, which underpin — explicitly or implicitly — recent trends. The first tier concerns the higher-level concepts of independence, professional competence and integrity that are constant across all international courts. Below this layer is an emerging second tier that seeks to operationalize these requirements, using the principles of transparency, non-politicization, merit, diversity, and representation. The second tier is highly contextual, depending on the function, institutional framework, and political context of the particular court. In order to place developments in the ICJ and ICC in the wider context of the international judiciary, interviewees were asked for their views on the merits of recent changes and potential future reforms in other courts. This chapter reviews their responses in the light of developments in judicial selection processes in different parts of the international court system. Responses tended to fall into the following four main categories: (1) transparency; (2) independence and non-politicization; (3) competence and merit; and (4) diversity and representation.Less
Proposals for reform of the selection processes of the international judiciary command considerable support in certain quarters, but face real political hurdles. For this reason, reforms to date have been uneven, making it difficult to identify clear trends. In some courts, such as the ICJ, very little change has occurred. In others, such as the European Court of Human Rights (ECtHR), considerable efforts have been made in recent years to improve the processes. Despite the very disparate nature of the developments, it is possible to discern two tiers of principles at play, which underpin — explicitly or implicitly — recent trends. The first tier concerns the higher-level concepts of independence, professional competence and integrity that are constant across all international courts. Below this layer is an emerging second tier that seeks to operationalize these requirements, using the principles of transparency, non-politicization, merit, diversity, and representation. The second tier is highly contextual, depending on the function, institutional framework, and political context of the particular court. In order to place developments in the ICJ and ICC in the wider context of the international judiciary, interviewees were asked for their views on the merits of recent changes and potential future reforms in other courts. This chapter reviews their responses in the light of developments in judicial selection processes in different parts of the international court system. Responses tended to fall into the following four main categories: (1) transparency; (2) independence and non-politicization; (3) competence and merit; and (4) diversity and representation.
Sydney D. Bailey and Sam Daws
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198280736
- eISBN:
- 9780191598746
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280734.003.0006
- Subject:
- Political Science, International Relations and Politics
Discusses relations of the UN Security Council with other organs. The first organ discussed is the UN Military Staff Committee, for which a chronology of activities and instructions is given for the ...
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Discusses relations of the UN Security Council with other organs. The first organ discussed is the UN Military Staff Committee, for which a chronology of activities and instructions is given for the period 1946–1996. The next is the UN General Assembly: aspects of this body discussed include elections and appointments, annual and special reports, threats to peace and security, special sessions, subsidiary organs, action relating to UN membership, financing peacekeeping operations, and the election of non‐members of the Council. Other organs discussed are the UN Economic and Social Council, the UN Trusteeship Council (now of historical interest only), the UN International Court of Justice, and non‐governmental organizations. The final section of the chapter discusses the appointment of the Secretary‐General of the UN.Less
Discusses relations of the UN Security Council with other organs. The first organ discussed is the UN Military Staff Committee, for which a chronology of activities and instructions is given for the period 1946–1996. The next is the UN General Assembly: aspects of this body discussed include elections and appointments, annual and special reports, threats to peace and security, special sessions, subsidiary organs, action relating to UN membership, financing peacekeeping operations, and the election of non‐members of the Council. Other organs discussed are the UN Economic and Social Council, the UN Trusteeship Council (now of historical interest only), the UN International Court of Justice, and non‐governmental organizations. The final section of the chapter discusses the appointment of the Secretary‐General of the UN.
Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0003
- Subject:
- Political Science, International Relations and Politics
This chapter follows on from the previous by exploring how the pluralist – solidarist distinction at the heart of English School inquiry manifests itself in the question of whether states have a ...
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This chapter follows on from the previous by exploring how the pluralist – solidarist distinction at the heart of English School inquiry manifests itself in the question of whether states have a right and duty to extradite or prosecute individuals charged with crimes that offend humanity. By focusing on the Pinochet case before the House of Lords and the Arrest Warrant or Yerodia case before the International Court of Justice it demonstrates how the pluralist concern for order within and between states has restrained the solidarist enthusiasm for universal jurisdiction. The chapter includes a section on the politics of international criminal justice. This advances the argument that the US prefers to limit the decision to prosecute to states because its position of relative power means that it can more or less guarantee its interests and protect its personnel from international criminal accountability. This is illustrated by focusing on the US response to Belgian legislation that enabled its national courts to exercise universal jurisdiction.Less
This chapter follows on from the previous by exploring how the pluralist – solidarist distinction at the heart of English School inquiry manifests itself in the question of whether states have a right and duty to extradite or prosecute individuals charged with crimes that offend humanity. By focusing on the Pinochet case before the House of Lords and the Arrest Warrant or Yerodia case before the International Court of Justice it demonstrates how the pluralist concern for order within and between states has restrained the solidarist enthusiasm for universal jurisdiction. The chapter includes a section on the politics of international criminal justice. This advances the argument that the US prefers to limit the decision to prosecute to states because its position of relative power means that it can more or less guarantee its interests and protect its personnel from international criminal accountability. This is illustrated by focusing on the US response to Belgian legislation that enabled its national courts to exercise universal jurisdiction.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0005
- Subject:
- Law, Public International Law, Legal Profession and Ethics
Once ICJ and ICC candidates emerge from the national nomination processes, they are presented for election by the states which are, respectively, for the ICJ, members of the UN General Assembly and ...
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Once ICJ and ICC candidates emerge from the national nomination processes, they are presented for election by the states which are, respectively, for the ICJ, members of the UN General Assembly and Security Council and, for the ICC, the Assembly of States Parties (ASP). The governing statutes of the ICJ and the ICC provide little by way of guidance as to the conduct of the elections and virtually nothing is known publicly about the internal mechanics of the election processes. This chapter sheds light on the way in which election rules are applied in practice and identifies other variables that will influence the outcome of the elections. Anecdotal evidence provides strong support for the view that political influences play a significant role in the election processes.Less
Once ICJ and ICC candidates emerge from the national nomination processes, they are presented for election by the states which are, respectively, for the ICJ, members of the UN General Assembly and Security Council and, for the ICC, the Assembly of States Parties (ASP). The governing statutes of the ICJ and the ICC provide little by way of guidance as to the conduct of the elections and virtually nothing is known publicly about the internal mechanics of the election processes. This chapter sheds light on the way in which election rules are applied in practice and identifies other variables that will influence the outcome of the elections. Anecdotal evidence provides strong support for the view that political influences play a significant role in the election processes.
Christina M. Cerna
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.003.0009
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter explores the issue of the right to consular notification, set forth in Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). The differing considerations of this ...
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This chapter explores the issue of the right to consular notification, set forth in Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). The differing considerations of this right by the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (Inter-American Court) provide material for a case study of the impact of international human rights law on general international law, to gauge what some have termed the ‘humanization’ of general international law. The ICJ judgments, when contrasted with the advisory opinion of the Inter-American Court, also provide an interesting case study on the results of a multiplicity of international jurisdictions dealing with the same facts.Less
This chapter explores the issue of the right to consular notification, set forth in Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). The differing considerations of this right by the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (Inter-American Court) provide material for a case study of the impact of international human rights law on general international law, to gauge what some have termed the ‘humanization’ of general international law. The ICJ judgments, when contrasted with the advisory opinion of the Inter-American Court, also provide an interesting case study on the results of a multiplicity of international jurisdictions dealing with the same facts.
Armin von Bogdandy and Ingo Venzke
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198717461
- eISBN:
- 9780191787034
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198717461.003.0002
- Subject:
- Law, Public International Law, Comparative Law
This chapter presents three established conceptions that dominate the understanding of the practice and scholarship of international courts: first, the state-oriented conception, which sees ...
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This chapter presents three established conceptions that dominate the understanding of the practice and scholarship of international courts: first, the state-oriented conception, which sees international courts as mere instruments of dispute settlement in a state-centric world order; second, the view according to which international courts act as organs of the value-based international community; third, the conception of international courts as institutions of legal regimes. This chapter thereby describes the key international courts from different angles, shows with further nuance that they typically perform multiple functions, and illustrates the growing relevance of international courts. It finally critiques these established basic understandings, which see international courts as instruments, organs, and institutions, but not as actors who exercise public authority. The chapter closes by pointing the way towards the fourth, democracy-oriented conception of international courts.Less
This chapter presents three established conceptions that dominate the understanding of the practice and scholarship of international courts: first, the state-oriented conception, which sees international courts as mere instruments of dispute settlement in a state-centric world order; second, the view according to which international courts act as organs of the value-based international community; third, the conception of international courts as institutions of legal regimes. This chapter thereby describes the key international courts from different angles, shows with further nuance that they typically perform multiple functions, and illustrates the growing relevance of international courts. It finally critiques these established basic understandings, which see international courts as instruments, organs, and institutions, but not as actors who exercise public authority. The chapter closes by pointing the way towards the fourth, democracy-oriented conception of international courts.
Ryan M. Irwin
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199855612
- eISBN:
- 9780199979882
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199855612.003.0004
- Subject:
- History, Political History, World Modern History
This chapter looks at climax of the 1960s apartheid debate. It focuses on the stakes of a case at the International Court of Justice (ICJ) that pitted the African Group against Pretoria. Beneath the ...
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This chapter looks at climax of the 1960s apartheid debate. It focuses on the stakes of a case at the International Court of Justice (ICJ) that pitted the African Group against Pretoria. Beneath the case’s surface—which revolved ostensibly around the question of whether South Africa’s World War I-era Mandate over South West Africa was still legitimate—lay a deeper debate about the meaning of the postcolonial Nation. For both African and Afrikaner nationalists, the court case was a way to legitimize their claims about nationhood—and to force Washington to pick a side in the postcolonial apartheid debate. Although opposed to U.N. action through the General Assembly, U.S. policymakers recognized that America’s status as a “postimperia”’ superpower rested partly on the credibility and authority of the ICJ. In 1966 the Court rejected the African Group’s case against South Africa, dealing African nationalists with a major blow.Less
This chapter looks at climax of the 1960s apartheid debate. It focuses on the stakes of a case at the International Court of Justice (ICJ) that pitted the African Group against Pretoria. Beneath the case’s surface—which revolved ostensibly around the question of whether South Africa’s World War I-era Mandate over South West Africa was still legitimate—lay a deeper debate about the meaning of the postcolonial Nation. For both African and Afrikaner nationalists, the court case was a way to legitimize their claims about nationhood—and to force Washington to pick a side in the postcolonial apartheid debate. Although opposed to U.N. action through the General Assembly, U.S. policymakers recognized that America’s status as a “postimperia”’ superpower rested partly on the credibility and authority of the ICJ. In 1966 the Court rejected the African Group’s case against South Africa, dealing African nationalists with a major blow.
Theodor Meron
- Published in print:
- 1991
- Published Online:
- March 2012
- ISBN:
- 9780198257455
- eISBN:
- 9780191681769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198257455.003.0004
- Subject:
- Law, Public International Law
This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian ...
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This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.Less
This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.
Bruno Simma and Theodore Kill
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199571345
- eISBN:
- 9780191705472
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571345.003.0036
- Subject:
- Law, Public International Law, Private International Law
Under customary principles of treaty interpretation, tribunals routinely resort to rules of international law whose normative validity is grounded in a source outside of the treaty that is the ...
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Under customary principles of treaty interpretation, tribunals routinely resort to rules of international law whose normative validity is grounded in a source outside of the treaty that is the subject of interpretation. Rules fitting this description are referred to as ‘external rules’ in relation to the treaty being interpreted. This chapter explores the possibility that investment tribunals may take international human rights law into account as such external rules when interpreting the treaties upon which investor claims are based. Section B discusses the practice of the International Court of Justice (ICJ) in looking to external rules of international law as interpretative aids. Section C examines Article 31, paragraph 3, sub-paragraph c (Article 31(3)(c)) of the 1969 Vienna Convention on the Law of Treaties. Section D briefly sets out the ways in which international human rights law can inform the interpretation of BITs, based on our analysis of ICJ case law and Article 31(3)(c).Less
Under customary principles of treaty interpretation, tribunals routinely resort to rules of international law whose normative validity is grounded in a source outside of the treaty that is the subject of interpretation. Rules fitting this description are referred to as ‘external rules’ in relation to the treaty being interpreted. This chapter explores the possibility that investment tribunals may take international human rights law into account as such external rules when interpreting the treaties upon which investor claims are based. Section B discusses the practice of the International Court of Justice (ICJ) in looking to external rules of international law as interpretative aids. Section C examines Article 31, paragraph 3, sub-paragraph c (Article 31(3)(c)) of the 1969 Vienna Convention on the Law of Treaties. Section D briefly sets out the ways in which international human rights law can inform the interpretation of BITs, based on our analysis of ICJ case law and Article 31(3)(c).
Arman Sarvarian
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199679461
- eISBN:
- 9780191758522
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199679461.003.0005
- Subject:
- Law, Legal Profession and Ethics, Public International Law
This chapter analyses the procedure and practice of advocacy before the International Court of Justice with supplementary reference to the International Tribunal for the Law of the Sea and other ...
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This chapter analyses the procedure and practice of advocacy before the International Court of Justice with supplementary reference to the International Tribunal for the Law of the Sea and other inter-State tribunals. Building upon the historical background provided in Chapter 3, it scrutinizes the admission requirements, ethical issues, and disciplinary powers applicable to the practice of the Court. It identifies various issues concerning the conduct of counsel in the practice of the Court, ranging from the qualifications of the members of the ‘invisible de facto bar’ to the adducing of forged documents and problems concerning the handling of witnesses. In exploring the history of the relationship between the Court and parties in the context of regulation of case presentation, the chapter argues that the professionalization of advocacy through the prescription of common ethical standards backed by admission requirements and disciplinary powers is practically desirable in light of the experiences of the Court. It examines the professional ethics of agents as well as counsel and advocates in addition to the experience of the Practice Directions in regulating advocacy before the Court.Less
This chapter analyses the procedure and practice of advocacy before the International Court of Justice with supplementary reference to the International Tribunal for the Law of the Sea and other inter-State tribunals. Building upon the historical background provided in Chapter 3, it scrutinizes the admission requirements, ethical issues, and disciplinary powers applicable to the practice of the Court. It identifies various issues concerning the conduct of counsel in the practice of the Court, ranging from the qualifications of the members of the ‘invisible de facto bar’ to the adducing of forged documents and problems concerning the handling of witnesses. In exploring the history of the relationship between the Court and parties in the context of regulation of case presentation, the chapter argues that the professionalization of advocacy through the prescription of common ethical standards backed by admission requirements and disciplinary powers is practically desirable in light of the experiences of the Court. It examines the professional ethics of agents as well as counsel and advocates in addition to the experience of the Practice Directions in regulating advocacy before the Court.
Rosalyn Higgins Dbe Qc
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780198262350
- eISBN:
- 9780191682322
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262350.003.0062
- Subject:
- Law, Public International Law
The European Court of Justice (ECJ) and the United Nations’ International Court of Justice (ICJ) were established by interstate treaties. The major issue today seems to be one of the coherence of ...
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The European Court of Justice (ECJ) and the United Nations’ International Court of Justice (ICJ) were established by interstate treaties. The major issue today seems to be one of the coherence of human rights protection in Europe. Public international law is regarded by the ECJ as part of the legal order of European law. The European Court of Human Rights’ starting point is that human rights law, including the Convention on Human Rights, is part of international law. In a recent series of cases, the application of the law of state immunity by national courts has appeared to be incompatible with substantive provisions of the Convention on Human Rights, whereby the ratifying States of the Council of Europe undertake to guarantee prohibition to torture (the issue in the Al-Adsani case) or access to court as a component element of fair trial (the Fogarty and McElhinney cases). In our interrelated world, with a largely horizontal legal order (to which the European Union is a partial exception), globalisation has spawned numerous international tribunals and international criminal courts.Less
The European Court of Justice (ECJ) and the United Nations’ International Court of Justice (ICJ) were established by interstate treaties. The major issue today seems to be one of the coherence of human rights protection in Europe. Public international law is regarded by the ECJ as part of the legal order of European law. The European Court of Human Rights’ starting point is that human rights law, including the Convention on Human Rights, is part of international law. In a recent series of cases, the application of the law of state immunity by national courts has appeared to be incompatible with substantive provisions of the Convention on Human Rights, whereby the ratifying States of the Council of Europe undertake to guarantee prohibition to torture (the issue in the Al-Adsani case) or access to court as a component element of fair trial (the Fogarty and McElhinney cases). In our interrelated world, with a largely horizontal legal order (to which the European Union is a partial exception), globalisation has spawned numerous international tribunals and international criminal courts.
Thomas M. Franck
- Published in print:
- 1998
- Published Online:
- March 2012
- ISBN:
- 9780198267850
- eISBN:
- 9780191683398
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267850.003.0010
- Subject:
- Law, Public International Law
Almost all political instruments of governance need to be supplemented by third party institutions of dispute settlement. The United Nations Security Council, when it makes decisions based on a ...
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Almost all political instruments of governance need to be supplemented by third party institutions of dispute settlement. The United Nations Security Council, when it makes decisions based on a consensus among states with no partisan interest, could be included. When it operates in accordance with principles of fairness, the Security Council becomes analogous with a tribunal or jury. International environment management systems use fact finding, structured so as to justify expectations of fairness and impartiality, in conflict resolution. Although these and other third-party processes can contribute significantly to the legitimacy and perceived fairness of the international order, by far the most salient third-party process of the system is that of the International Court of Justice (ICJ). The ICJ is not the primary means of making international law, but only an international law which is subject to case-by-case interpretation via a credible third-party decision-making process is a serious norm. This chapter focuses on the ICJ's quest for structural impartiality through selection and tenure of judges, along with procedural aspects of defining the Court's jurisdiction.Less
Almost all political instruments of governance need to be supplemented by third party institutions of dispute settlement. The United Nations Security Council, when it makes decisions based on a consensus among states with no partisan interest, could be included. When it operates in accordance with principles of fairness, the Security Council becomes analogous with a tribunal or jury. International environment management systems use fact finding, structured so as to justify expectations of fairness and impartiality, in conflict resolution. Although these and other third-party processes can contribute significantly to the legitimacy and perceived fairness of the international order, by far the most salient third-party process of the system is that of the International Court of Justice (ICJ). The ICJ is not the primary means of making international law, but only an international law which is subject to case-by-case interpretation via a credible third-party decision-making process is a serious norm. This chapter focuses on the ICJ's quest for structural impartiality through selection and tenure of judges, along with procedural aspects of defining the Court's jurisdiction.
Gleider I Hernández
- Published in print:
- 2014
- Published Online:
- August 2014
- ISBN:
- 9780199646630
- eISBN:
- 9780191747854
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199646630.003.0002
- Subject:
- Law, Public International Law, Legal Profession and Ethics
This chapter takes the reader through four important moments that were key in the creation of the Court as an institution. It briefly outlines the compromises arrived at during the 1899 and 1907 ...
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This chapter takes the reader through four important moments that were key in the creation of the Court as an institution. It briefly outlines the compromises arrived at during the 1899 and 1907 Hague Peace Conferences, the process relating to the creation of the Permanent Court of International Justice (1920–22), and the revisions that led to the inclusion of the International Court of Justice as the principal judicial organ of the United Nations (1945). The principal argument focuses on the project to bring the rule of law to international society, in the form of judicial institutions, and reflects on the compromises made in order to achieve the goal.Less
This chapter takes the reader through four important moments that were key in the creation of the Court as an institution. It briefly outlines the compromises arrived at during the 1899 and 1907 Hague Peace Conferences, the process relating to the creation of the Permanent Court of International Justice (1920–22), and the revisions that led to the inclusion of the International Court of Justice as the principal judicial organ of the United Nations (1945). The principal argument focuses on the project to bring the rule of law to international society, in the form of judicial institutions, and reflects on the compromises made in order to achieve the goal.
