Search Results

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.