Louis Fisher
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199217977
- eISBN:
- 9780191711541
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217977.003.0002
- Subject:
- Political Science, American Politics
This chapter explores the constitutional source of ‘inherent powers’. Firstly it analyzes what is meant by express, implied, and emergency powers. Then it examines closely the 1936 Supreme Court ...
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This chapter explores the constitutional source of ‘inherent powers’. Firstly it analyzes what is meant by express, implied, and emergency powers. Then it examines closely the 1936 Supreme Court case, Curtiss-Wright, that is most often cited for supporting inherent and extra-constitutional powers for the president. The chapter then moves to discussing the use of inherent powers by President Harry Truman in 1952 to seize steel mills to prosecute the war in Korea, and the reliance on inherent powers by President George W. Bush to accomplish a range of war-related actions. Truman's initiative was repudiated by the Supreme Court in the Youngstown case, but the legal and political limits of Bush's actions are still being played out.Less
This chapter explores the constitutional source of ‘inherent powers’. Firstly it analyzes what is meant by express, implied, and emergency powers. Then it examines closely the 1936 Supreme Court case, Curtiss-Wright, that is most often cited for supporting inherent and extra-constitutional powers for the president. The chapter then moves to discussing the use of inherent powers by President Harry Truman in 1952 to seize steel mills to prosecute the war in Korea, and the reliance on inherent powers by President George W. Bush to accomplish a range of war-related actions. Truman's initiative was repudiated by the Supreme Court in the Youngstown case, but the legal and political limits of Bush's actions are still being played out.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.001.0001
- Subject:
- Law, Public International Law
The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to ...
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The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to questions of procedure and remedies. The central argument is that there is an increasing commonality in the practice of international courts and tribunals to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication. This book examines this question by considering several key issues relating to procedure and remedies, and analyses relevant international jurisprudence to demonstrate that there is substantial commonality. It then looks at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles. The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.Less
The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to questions of procedure and remedies. The central argument is that there is an increasing commonality in the practice of international courts and tribunals to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication. This book examines this question by considering several key issues relating to procedure and remedies, and analyses relevant international jurisprudence to demonstrate that there is substantial commonality. It then looks at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles. The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0003
- Subject:
- Law, Public International Law
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ...
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This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.Less
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0006
- Subject:
- Law, Public International Law
This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role ...
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This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.Less
This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0005
- Subject:
- Law, Public International Law
This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures ...
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This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures in international adjudication. It then considers the source of the power to grant provisional measures. Many international courts have an express power in their constitutive instruments, but several international courts have exercised the power as an inherent power. The chapter then examines the features common in the exercise of the power by a range of international courts — consideration of the question of jurisdiction over the merits of the dispute; the circumstances relevant to the granting of provisional measures; and the binding quality of provisional measures. Finally, the chapter considers the power of international courts to grant provisional measures ultra petita and proprio motu. It concludes that there is substantial commonality in the practice of international courts concerning provisional measures.Less
This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures in international adjudication. It then considers the source of the power to grant provisional measures. Many international courts have an express power in their constitutive instruments, but several international courts have exercised the power as an inherent power. The chapter then examines the features common in the exercise of the power by a range of international courts — consideration of the question of jurisdiction over the merits of the dispute; the circumstances relevant to the granting of provisional measures; and the binding quality of provisional measures. Finally, the chapter considers the power of international courts to grant provisional measures ultra petita and proprio motu. It concludes that there is substantial commonality in the practice of international courts concerning provisional measures.
