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.
Isabelle Van Damme
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562237
- eISBN:
- 9780191705588
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562237.003.0005
- Subject:
- Law, Public International Law
This chapter focuses on the inherent powers of the Appellate Body, and how the availability and exercise of such powers influences the interpretation and application of procedural rules in WTO ...
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This chapter focuses on the inherent powers of the Appellate Body, and how the availability and exercise of such powers influences the interpretation and application of procedural rules in WTO dispute settlement. The analysis in this chapter builds on the distinction, made in Chapter 4, between procedural and substantive silences in WTO treaty language and the Appellate Body's interpretation of those silences. The chapter helps to explain how and why the appreciation of the judicial function of the WTO Appellate Body is commonly too narrowly construed on the basis of the DSU.Less
This chapter focuses on the inherent powers of the Appellate Body, and how the availability and exercise of such powers influences the interpretation and application of procedural rules in WTO dispute settlement. The analysis in this chapter builds on the distinction, made in Chapter 4, between procedural and substantive silences in WTO treaty language and the Appellate Body's interpretation of those silences. The chapter helps to explain how and why the appreciation of the judicial function of the WTO Appellate Body is commonly too narrowly construed on the basis of the DSU.
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.
Louis Fisher
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199856213
- eISBN:
- 9780199358397
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199856213.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter on presidential powers first analyzes three concepts that go beyond powers expressly stated: “implied,” “inherent,” and “prerogative.” It then considers specific presidential powers, ...
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This chapter on presidential powers first analyzes three concepts that go beyond powers expressly stated: “implied,” “inherent,” and “prerogative.” It then considers specific presidential powers, such as the power to remove executive officials and to issue pardons. Presidential powers wax and wane depending on who occupies the Oval Office; initiatives urged by advisers and supporters, national, and international pressures; popular support (and lack thereof); and actions taken by the legislative and judicial branches to encourage or curb executive power.Less
This chapter on presidential powers first analyzes three concepts that go beyond powers expressly stated: “implied,” “inherent,” and “prerogative.” It then considers specific presidential powers, such as the power to remove executive officials and to issue pardons. Presidential powers wax and wane depending on who occupies the Oval Office; initiatives urged by advisers and supporters, national, and international pressures; popular support (and lack thereof); and actions taken by the legislative and judicial branches to encourage or curb executive power.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0012
- Subject:
- Law, Public International Law
This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting ...
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This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.Less
This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.
Robert F. Williams
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195343083
- eISBN:
- 9780199866960
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343083.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the differences between the federal and state judiciary. Many state judges are elected through a variety of mechanisms. The workload of state supreme courts has evolved over ...
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This chapter discusses the differences between the federal and state judiciary. Many state judges are elected through a variety of mechanisms. The workload of state supreme courts has evolved over the years from a private-law orientation to more constitutional law and public policy kinds of cases. In addition, state courts exercise a number of nonadjudicatory powers such as rulemaking on practice and procedure before the courts and regulation of lawyers. Some state courts have the authority to issue advisory opinions and answer certified questions, and some of them have asserted certain inherent powers such as to require adequate funding levels. State courts also retain the power to develop common law doctrine, as well as to resolve disputes among state and local government officials and agencies in ways that rarely involve the federal judiciary. State courts are also not bound by the rigid federal doctrines of standing, mootness, and ripeness.Less
This chapter discusses the differences between the federal and state judiciary. Many state judges are elected through a variety of mechanisms. The workload of state supreme courts has evolved over the years from a private-law orientation to more constitutional law and public policy kinds of cases. In addition, state courts exercise a number of nonadjudicatory powers such as rulemaking on practice and procedure before the courts and regulation of lawyers. Some state courts have the authority to issue advisory opinions and answer certified questions, and some of them have asserted certain inherent powers such as to require adequate funding levels. State courts also retain the power to develop common law doctrine, as well as to resolve disputes among state and local government officials and agencies in ways that rarely involve the federal judiciary. State courts are also not bound by the rigid federal doctrines of standing, mootness, and ripeness.
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.
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/9780199646630.003.0003
- Subject:
- Law, Public International Law, Legal Profession and Ethics
This Chapter addresses the Court in its present institutional form, addressing its dual function in relation to the settlement of contentious disputes and its advisory function in relation to the ...
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This Chapter addresses the Court in its present institutional form, addressing its dual function in relation to the settlement of contentious disputes and its advisory function in relation to the organs of the United Nations. Taking into account the Court's enduring concern for its consensual jurisdiction, this Chapter considers the various powers the Court has claimed for itself on the basis that these are inherent in the function of any judiciary, both in relation to its contentious and advisory functions. It concludes with an extended discussion of the Court's role in the development of international law.Less
This Chapter addresses the Court in its present institutional form, addressing its dual function in relation to the settlement of contentious disputes and its advisory function in relation to the organs of the United Nations. Taking into account the Court's enduring concern for its consensual jurisdiction, this Chapter considers the various powers the Court has claimed for itself on the basis that these are inherent in the function of any judiciary, both in relation to its contentious and advisory functions. It concludes with an extended discussion of the Court's role in the development of international law.
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/9780199679461.003.0010
- Subject:
- Law, Legal Profession and Ethics, Public International Law
This chapter explores the feasibility of professionalization through the articulation of common ethical standards for counsel. Through analysis of the nascent efforts in professional organizations ...
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This chapter explores the feasibility of professionalization through the articulation of common ethical standards for counsel. Through analysis of the nascent efforts in professional organizations such as the International Law Association, International Bar Association, and Council of Bars and Law Societies of Europe to codify such standards, it assesses the utility of the exercise and the process by which these principles can be applied in practice. It considers the legal powers (eg the ‘inherent jurisdiction’ or ‘inherent powers’ of international courts) and practical ability of international judges to regulate counsel as well as the issues that have arisen in the nascent process of articulating common ethical standards in professional organizations, including the ILA Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals. Moreover, the chapter examines the jurisprudence of international courts and tribunals concerning regulatory powers for counsel and the legal and practical problems associated with regulation of counsel by the international judiciary.Less
This chapter explores the feasibility of professionalization through the articulation of common ethical standards for counsel. Through analysis of the nascent efforts in professional organizations such as the International Law Association, International Bar Association, and Council of Bars and Law Societies of Europe to codify such standards, it assesses the utility of the exercise and the process by which these principles can be applied in practice. It considers the legal powers (eg the ‘inherent jurisdiction’ or ‘inherent powers’ of international courts) and practical ability of international judges to regulate counsel as well as the issues that have arisen in the nascent process of articulating common ethical standards in professional organizations, including the ILA Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals. Moreover, the chapter examines the jurisprudence of international courts and tribunals concerning regulatory powers for counsel and the legal and practical problems associated with regulation of counsel by the international judiciary.
GEORGE H. ALDRICH
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198258056
- eISBN:
- 9780191681776
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258056.003.0004
- Subject:
- Law, Public International Law, Philosophy of Law
The Algiers Declarations make no direct reference to interim measures that the Iran–United States Claims Tribunal might order, but Article 3, Paragraph 2 of the Claims Settlement Declaration makes an ...
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The Algiers Declarations make no direct reference to interim measures that the Iran–United States Claims Tribunal might order, but Article 3, Paragraph 2 of the Claims Settlement Declaration makes an indirect reference by providing that the Tribunal ‘shall conduct its business in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) except to the extent modified by the parties or by the Tribunal to ensure that this agreement can be carried out’. The relevant provision of the UNCITRAL Rules – which is unchanged in the Tribunal Rules – is Article 26. When the Tribunal first addressed a request for interim measures of protection, it based the measures it ordered, not on Article 26, but on its ‘inherent powers’. The Tribunal did not refer to Article 26 in requesting Iran to stay proceedings against E-Systems in an Iranian court that involved the same contract and many of the same issues as E-System’s claims before the Tribunal.Less
The Algiers Declarations make no direct reference to interim measures that the Iran–United States Claims Tribunal might order, but Article 3, Paragraph 2 of the Claims Settlement Declaration makes an indirect reference by providing that the Tribunal ‘shall conduct its business in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) except to the extent modified by the parties or by the Tribunal to ensure that this agreement can be carried out’. The relevant provision of the UNCITRAL Rules – which is unchanged in the Tribunal Rules – is Article 26. When the Tribunal first addressed a request for interim measures of protection, it based the measures it ordered, not on Article 26, but on its ‘inherent powers’. The Tribunal did not refer to Article 26 in requesting Iran to stay proceedings against E-Systems in an Iranian court that involved the same contract and many of the same issues as E-System’s claims before the Tribunal.
Gleider I Hernández
- Published in print:
- 2014
- Published Online:
- August 2014
- ISBN:
- 9780199646630
- eISBN:
- 9780191747854
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199646630.001.0001
- Subject:
- Law, Public International Law, Legal Profession and Ethics
The ascertainment by a court of a principle of law has a constitutive, and not merely a declaratory character. Accordingly, the judicial function plays an important role in the safeguarding of the ...
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The ascertainment by a court of a principle of law has a constitutive, and not merely a declaratory character. Accordingly, the judicial function plays an important role in the safeguarding of the coherence of the legal system in which it operates. The International Court of Justice, principal judicial organ of the United Nations, is no exception; the most august of all international courts, it sees significant normative force attached to its judgments, and is thus cast as an important player in the process of developing international law. In this book, the Court serves as a heuristic device, a magnifying lens to focus wider theorizing on the judicial role within the international legal process. The central thesis advanced is that the Court, designed to be objective and impartial, is also the institutional embodiment of a delicate compromise between the sovereignty of States and economic and political pressures for a stronger ‘international community’. One cannot properly understand the Court without moving away from a viewpoint which evaluates its work with a pre-conceived notion of its ideal purpose. First are considered the historical aspects of the Court's constitutive Statute and the manner in which it defines its judicial character as an international judicial organ. Secondly, the Court's inner processes are considered. Its drafting process, the value of dissent, the aspiration towards impartiality, and the theory of precedent are examined from the perspective of how the Court constructs its claim to normative authority. Finally, two conceptual issues are considered: its construction of the legal community in which it is situated, and its theory on the completeness of the international legal order in which it operates.Less
The ascertainment by a court of a principle of law has a constitutive, and not merely a declaratory character. Accordingly, the judicial function plays an important role in the safeguarding of the coherence of the legal system in which it operates. The International Court of Justice, principal judicial organ of the United Nations, is no exception; the most august of all international courts, it sees significant normative force attached to its judgments, and is thus cast as an important player in the process of developing international law. In this book, the Court serves as a heuristic device, a magnifying lens to focus wider theorizing on the judicial role within the international legal process. The central thesis advanced is that the Court, designed to be objective and impartial, is also the institutional embodiment of a delicate compromise between the sovereignty of States and economic and political pressures for a stronger ‘international community’. One cannot properly understand the Court without moving away from a viewpoint which evaluates its work with a pre-conceived notion of its ideal purpose. First are considered the historical aspects of the Court's constitutive Statute and the manner in which it defines its judicial character as an international judicial organ. Secondly, the Court's inner processes are considered. Its drafting process, the value of dissent, the aspiration towards impartiality, and the theory of precedent are examined from the perspective of how the Court constructs its claim to normative authority. Finally, two conceptual issues are considered: its construction of the legal community in which it is situated, and its theory on the completeness of the international legal order in which it operates.
