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Journal articles on the topic 'International courts'
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1
ULFSTEIN, GEIR. "Transnational constitutional aspects of the European Court of Human Rights." Global Constitutionalism 10, no. 1 (March 2021): 151–74. http://dx.doi.org/10.1017/s2045381719000303.
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AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.
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Dauster, Manfred. "From Nuremberg to the Hague and beyond: International criminal law in courts: Court of Bosnia And Herzegovina as an example." Bratislava Law Review 3, no. 2 (December 31, 2019): 76–83. http://dx.doi.org/10.46282/blr.2019.3.2.149.
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International criminal law in courts will seize our interest forever. Adjudication of international criminal law violations have to happen in and by courts. They may be national courts; they also may be international (permanent or ad hoc) courts. Not to forget: It is also proposed to prosecute internationally active terrorists by international courts. It is worthwhile to take a short look at the historical development of such discussions. The so-called International (Legal) Community has discussed all forms of international criminal jurisdiction and will keep on discussing. In Bosnia and Herzegovina once the so-called internationals started an experiment with the (national) Court of Bosnia and Herzegovina, which in its nutshell was an administrative court that then was turned into a hybrid court predominantly for war crimes (and other serious felonies). As such a hybrid institution the Court was successful. International judges have left and the court became a purely national institution again. The short hybrid history of this court in a corner of the Western Balkans is worthwhile to be studied shortly.
3
Olesiuk-Okomska, Magda. "INTERNATIONAL CRIMES WITHIN THE JURISDICTION OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS." International Journal of Legal Studies ( IJOLS ) 2, no. 2 (December 29, 2017): 71–84. http://dx.doi.org/10.5604/01.3001.0012.2220.
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Although in international law responsibility traditionally had belonged to states, along with involvement of individuals in conflicts between states and committing by them crimes on a massive scale, a need to criminalize such acts and to bring offenders guilty of the most serious violations of international law to justice - arose. Establishment of international criminal courts resulted from the need to fulfill internationally the idea of justice. Development of international criminal courts reflects differences in inter alia attitude towards ratione materiae of particular courts and tribunals. The purpose of this article is to present and discuss international crimes within the jurisdiction of international criminal courts and tribunals. A typology of international criminal courts was indicated and the most important courts and tribunals were presented in detail. The paper discusses subject jurisdiction of International Military Court in Nuremberg and International Military Tribunal for the Far East in Tokio, the first international courts established to bring war criminals to justice; as well as the subject jurisdiction of the International Criminal Court, the only permanent court in international criminal court system, having universal jurisdiction. Four categories of the most serious crimes of international concern were considered, and doubts concerning subject jurisdiction of the International Criminal Court, as well as its functioning in general, were signalized.
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Huneeus, Alexandra, and René Urueña. "Treaty Exit and Latin America's Constitutional Courts." AJIL Unbound 111 (2017): 456–60. http://dx.doi.org/10.1017/aju.2017.101.
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Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court's judgment urging the Chávez Administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive's 2013 petition to have Colombia's acceptance of the International Court of Justice's (ICJ's) jurisdiction under the Pact of Bogotá declared unconstitutional (a court-legitimated treaty exit); and the Dominican Republic (DR) Constitutional Tribunal's 2014 judgment holding that the DR's acceptance of the jurisdiction of the Inter-American Court of Human Rights (IACtHR) had been unconstitutional (a court-led treaty exit).
5
King, Hugh. "Sosa v Alvarez-Machain and The Alien Tort Claims Act." Victoria University of Wellington Law Review 37, no. 1 (May 1, 2006): 1. http://dx.doi.org/10.26686/vuwlr.v37i1.5564.
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Since the seminal case of Filartiga v Pena-Irala in 1980, the controversial Alien Tort Claims Act has regularly been invoked in United States federal courts to sue foreign perpetrators of international human rights violations. In Sosa v Alvarez-Machain, decided in 2004, the United States Supreme Court for the first time ruled on the Act’s proper application. This article, after first identifying three different approaches taken towards the Act by federal courts over the last 25 years, examines the Supreme Court decision. While welcoming the Court’s affirmation of the Act as a mechanism for addressing certain international law violations, it critiques the Court’s conservative and problematic test to determine the extent of the international law violations falling within the Act’s ambit, and highlights many ambiguities in the decision with which lower courts will have to grapple.
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RAIMONDO, FABIÁN O. "The International Court of Justice as a Guardian of the Unity of Humanitarian Law." Leiden Journal of International Law 20, no. 3 (August 30, 2007): 593–611. http://dx.doi.org/10.1017/s092215650700427x.
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This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.
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Mayer, Benoit. "International Advisory Proceedings on Climate Change." Michigan Journal of International Law, no. 44.1 (2023): 41. http://dx.doi.org/10.36642/mjil.44.1.international.
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Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused. This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and engages critically with the main substantive and procedural aspects of potential advisory proceedings. This article demonstrates that, contrary to the prevailing view, these well-intended initiatives are almost certain to fall short of their goals and may even be counterproductive. The likely failure of advisory proceedings on climate change results from several factors, including jurisdictional challenges and questions of judicial propriety. A court tasked with adjudicating such an advisory proceeding would find it difficult to determine the law applicable to key aspects of the questions presented, including modalities of burden-sharing in global climate change mitigation efforts. And even if a court were to offer a meaningful advisory opinion, it is highly uncertain whether powerful states would comply. These factors raise the risk that the issuance of an advisory opinion would further erode the credibility of international institutions, undermining the foundations of future cooperation combating climate change.
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Rojo, Enrique Carnero, and Maria Nybondas. "INTERNATIONAL CRIMINAL COURTS ROUND-UP." Yearbook of International Humanitarian Law 9 (December 2006): 311–61. http://dx.doi.org/10.1017/s1389135906003114.
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AbstractThe International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.
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Guellai, Amna, and Enrique Carnero Rojo. "INTERNATIONAL CRIMINAL COURTS ROUND-UP." Yearbook of International Humanitarian Law 10 (December 2007): 133–97. http://dx.doi.org/10.1017/s138913590700133x.
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AbstractThe International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.
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Guellali, Amna, and Enrique Carnero Rojo. "INTERNATIONAL CRIMINAL COURTS ROUND-UP." Yearbook of International Humanitarian Law 11 (December 2008): 255–372. http://dx.doi.org/10.1017/s1389135908002559.
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AbstractThe International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.
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MANLEY, STEWART. "Citation Practices of the International Criminal Court: The Situation in Darfur, Sudan." Leiden Journal of International Law 30, no. 4 (September 4, 2017): 1003–26. http://dx.doi.org/10.1017/s0922156517000413.
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AbstractThis article analyzes the 9,203 citations made by the International Criminal Court (ICC) in its cases involving Sudan. To date, few empirical studies have assessed the citation practices of courts and even fewer of international courts. The data is rich. It reveals, for instance, the changing nature of the Court's citations over time, the disproportionate distribution of citations among chambers, the potential impact of party pleadings on citations, and the allocation of citations to previous rulings of the Court, other international tribunals and domestic courts. The article also explores possible explanations for the patterns that emerge and assesses what the patterns may mean for the Court. Unlike most other citation analyses, the study provides the additional benefit of having categorized the citations based on their function, distinguishing for instance between citations that the Court uses to help it decide legal and factual issues, and those it does not.
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Turns, David, Carnero Rojo, Julieta Solano McCausland, and Aleks Bojovic. "INTERNATIONAL CRIMINAL COURTS ROUND-UP." Yearbook of International Humanitarian Law 12 (December 2009): 233–62. http://dx.doi.org/10.1017/s1389135909000087.
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AbstractThe International Criminal Courts Round-Up reports on the most interesting judgements and decisions rendered by international(ized) criminal courts and tribunals during the reporting period. In addition, important developments within the various organs of the courts are highlighted, such as the appointment of new judges and significant amendments to the procedural rules of the courts. The Round-Up presently covers issues concerning the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Extraordinary Chambers in the Courts of Cambodia.
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Nerlich, Volker. "Audiences of the International Criminal Court." International Criminal Law Review 19, no. 6 (November 28, 2019): 1046–56. http://dx.doi.org/10.1163/15718123-01906008.
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The International Criminal Court (‘icc’), just as any other court of law, has several audiences, which include the parties and participants to the proceedings, the legal community and the general public. Based on typologies developed for other courts, this paper seeks to identify categories of audiences of the icc. The identification of such categories may be helpful in understanding reactions to the Court’s work. It may also be a tool in identifying priority audiences for the Court and in managing expectations. Furthermore, identifying audiences potentially may help to explain why certain decisions are taken.
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KJELDGAARD-PEDERSEN, ASTRID. "What Defines an International Criminal Court?: A Critical Assessment of ‘the Involvement of the International Community’ as a Deciding Factor." Leiden Journal of International Law 28, no. 1 (January 27, 2015): 113–31. http://dx.doi.org/10.1017/s0922156514000569.
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AbstractSince the post-Second World War tribunals, only a few scholars have attempted to draw a definitional distinction between international and national criminal courts. Remarkable exceptions include Robert Woetzel, who in 1962 categorized criminal courts according to ‘the involvement of the international community’, and Sarah Williams, who 50 years later relied on the same factor in her definitions of ‘hybrid’ and ‘internationalized’ criminal tribunals.Through examples of rulings by the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, this article will demonstrate that ‘the involvement of the international community’ is at best an unhelpful criterion when it comes to resolving questions, e.g. regarding the immunity of state officials and the relevance of domestic law, that require a determination of the legal system in which the court operates.Instead, it is argued that only criminal tribunals deriving their authority from international law should be labelled ‘international’, while the term ‘national criminal court’ should apply to tribunals set up under national law. This terminology would underline that issues concerning jurisdiction and applicable law must be settled according to each court's constituent document and other relevant sources of law, depending on the legal system to which this document belongs.
15
Devendra, Isuru. "Freezing Orders in Australia Inherent Powers and The International Arbitration Act 1974 (CTH)." Asian International Arbitration Journal 12, Issue 2 (December 1, 2016): 195–209. http://dx.doi.org/10.54648/aiaj2016009.
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Freezing orders are essential to protect the integrity of judicial and arbitral proceedings, including to preserve assets against which a prospective judgment may be enforced. In the recent case of PT Bayan Resources TBK v BCBC Singapore Pte Ltd, the High Court of Australia was asked to consider whether an Australian court was able to grant a freezing order in aid of foreign court proceedings and the source of any such power. Ultimately, the High Court found that Australian superior courts have an inherent jurisdiction to grant freezing orders in aid of foreign court proceedings. This paper explores the reasoning behind the Court’s decision and whether it extends to the ability of Australian courts to grant freezing orders in aid of foreign arbitration.
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Caserta, Salvatore, and Pola Cebulak. "RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW." International and Comparative Law Quarterly 70, no. 3 (July 2021): 737–68. http://dx.doi.org/10.1017/s0020589321000154.
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AbstractInternational courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.
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Chigara, Benedict Abrahamson. "The Administration of International Law in National Courts and the Legitimacy of International Law." International Criminal Law Review 17, no. 5 (October 15, 2017): 909–34. http://dx.doi.org/10.1163/15718123-01705004.
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Increasingly, national courts find themselves called upon to determine matters where un lex specialis; regional supranational law; customary international law and domestic law all appear relevant. Lower court judges may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. This article recommends that to ensure both justice and legitimacy of international law, national courts − especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable international law.
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Laucci, Cyril. "Juger et faire juger les auteurs de violations graves du droit international humanitaire." International Review of the Red Cross 83, no. 842 (June 2001): 407–38. http://dx.doi.org/10.1017/s1560775500105747.
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Abstract The establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, and the recent adoption of the Rome Statute of the International Criminal Court, are important steps towards ensuring that justice prevails. However, existing and future international criminal courts alone will never be able to try all cases of serious violations of international humanitarian law. Domestic courts have to step in and they must keep their role as the main agents for rendering justice. The rule according to which the ICC's jurisdiction is a complementary one is wise and also indispensable for guaranteeing the new court's success. The international courts should actively seek to establish cooperation agreements with national jurisdictions and facilitate the transfer of cases, in particular those of minor importance. In the authors'view the future of criminal justice lies in an invigorated domestic justice system
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Shany, Yuval. "Capacities and Inadequacies: A Look at the Two Separation Barrier Cases." Israel Law Review 38, no. 1-2 (2005): 230–46. http://dx.doi.org/10.1017/s0021223700012681.
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Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.
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Dunoff, Jeffrey, and Mark Pollack. "International Judicial Practices: Opening the "Black Box" of International Courts." Michigan Journal of International Law, no. 40.1 (2018): 47. http://dx.doi.org/10.36642/mjil.40.1.international.
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This paper utilizes “practice theory” to identify and analyze the everyday practices of international judges, with particular focus on practices associated with judicial decision-making. Examining judicial practices illuminates a wide range of otherwise hidden activities that shape international judicial opinions; provides a pathway toward uncovering the subjective understandings that international judges attach to their own behaviors; and reveals underlying causal processes and mechanisms that influence tribunal decisions. By opening the “black box” of international courts, the practice turn permits us to shed light on their inner workings, and thereby enrich our understanding of these increasingly important bodies.
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De Silva, Nicole. "International Courts’ Shadow Effects and the Aims of Judicialized International Cooperation." AJIL Unbound 115 (2021): 394–98. http://dx.doi.org/10.1017/aju.2021.61.
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In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make a valuable contribution to an expanding body of scholarship that considers whether and how international courts have out-of-court “shadow effects.” The authors argue that, in the UN Convention on the Law of the Sea (UNCLOS) regime, the threat of binding international dispute settlement (IDS)—which entails high costs for states—encourages rational potential litigants to settle out of court through other peaceful and less costly IDS mechanisms. In this essay, I challenge the narrow focus of Mitchell and Owsiak's analysis, considering the diverse aims and processes of judicialized international cooperation in two key ways. First, the authors’ focus on peaceful IDS as the sole outcome of interest overlooks other important cooperation goals driving judicialization and delegation to international courts. An emphasis on out-of-court IDS, even when achieved peacefully, can actually undermine other objectives for judicialized international cooperation, including the development of international law and greater compliance with international law. Second, Mitchell and Oswiak's theoretical mechanism assumes that an international court contributes to its out-of-court influence through its case law, but this discounts how international courts can engage in a range of out-of-court, non-adjudicative activities that can affect potential litigants’ cost-benefit analyses regarding judicialized versus non-judicialized IDS. Indicating its preference for increasing its “direct effects” through adjudicating disputes, the International Tribunal for the Law of the Sea (ITLOS) has developed capacity-building and training programs to encourage judicialized IDS under UNCLOS and states’ litigation at the ITLOS. Overall, I highlight how there is a broad range of actors and processes underpinning international courts’ out-of-court effects, and how these actors and processes can work towards multiple, at times conflicting, aims for judicialized international cooperation.
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Bigge, David. "Rule of Law Without International Courts." Law & Practice of International Courts and Tribunals 21, no. 3 (November 18, 2022): 483–97. http://dx.doi.org/10.1163/15718034-12341487.
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Abstract In commenting on the roles of Elihu Root and James Brown Scott in the founding of the Permanent Court of International Justice (PCIJ), former International Court of Justice (ICJ) President Abdulqawi Yusuf stated “there can be no [international] rule of law without a court to apply it.” The American Society of International Law (ASIL)’s International Courts and Tribunals Interest Group recently hosted a symposium event to probe this statement. Without rehashing the voluminous scholarship on the international rule of law, this introduction to the symposium will explore specifically whether a court such as the ICJ or the PCIJ is a prerequisite to an international rule of law. The international court system as currently formulated plainly does not meet the requirements for the rule of law as often defined for domestic systems. Unless we are prepared to accept that there is no international rule of law, or only a partial or developing rule of law, this means that there must be an alternative definition of “rule of law” for international relations, which does not consider international courts as a prerequisite to rule of law in all circumstances, and highlights other enforcement mechanisms and arbitration. Accepting this point does not diminish the important role of international courts in the application of international law but does serve to emphasize how other mechanisms fill important rule-of-law gaps left by international courts. Each of the articles that follow this introduction addresses these mechanisms – including administrative bodies, sanctions, investigative mechanisms, and ad hoc arbitration – and how each mechanism interacts with the international court system.
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Dyevre, Arthur. "Uncertainty and international adjudication." Leiden Journal of International Law 32, no. 01 (November 15, 2018): 131–48. http://dx.doi.org/10.1017/s0922156518000572.
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AbstractIn deciding whether to rule against a state party, international courts regularly confront a compliance dilemma: declare the state in breach of the international regime but with the risk that it will defy the court’s authority; or defer to the state but at the price of acquiescing to an unjust or undesirable outcome. Specifically, international adjudicators must solve this dilemma in a context of uncertainty, that is, without knowing with exactitude whether or not the state will prefer complying with an adverse ruling over overt defiance. I use a simple strategic model to cast light on this aspect of the compliance dilemma. Building off from the model’s insights, I then discuss the practices, doctrinal tactics and institutional mechanisms apt to reduce uncertainty and minimize state defiance. I highlight, in particular, the advantages of defiance avoidance mechanisms that help create informational feedback loops like test-the-water dicta and double-tier review. I illustrate how these mechanisms have been deployed by two of the world’s most powerful international courts, the European Court of Justice and the European Court of Human Rights. Finally, I consider the limitations of these mechanisms along with the possibility for other international dispute settlement bodies to replicate them.
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Trapani, Antonietta. "Bringing National Courts in Line with International Norms: A Comparative Look at the Court of Bosnia and Herzegovina and the Military Courts of the Democratic Republic of Congo." Israel Law Review 46, no. 2 (June 14, 2013): 233–48. http://dx.doi.org/10.1017/s002122371300006x.
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The advent of the principle of complementarity under the Statute of the International Criminal Court has shifted the focus on prosecuting international crimes to the national courts. One of the potential difficulties in this shift is that there is no uniform standard for incorporating and applying international legal norms in the national systems. This article examines how two very distinct national courts – the state Court of Bosnia and Herzegovina and the military courts of the Democratic Republic of Congo – have implemented and applied international legal norms. Despite the differences between these particular courts in the methods of implementation and application, international courts have had an impact on the national systems that have helped the latter to follow international criminal legal norms.
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Shelton, Dinah. "The Participation of Nongovernmental Organizations in International Judicial Proceedings." American Journal of International Law 88, no. 4 (October 1994): 611–42. http://dx.doi.org/10.2307/2204133.
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Nongovernmental organizations are playing an increasingly important role in international litigation. This study will analyze the participation of nongovernmental organizations, primarily as amici curiae, in the proceedings of four permanent international courts: the International Court of Justice, the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights. After discussing the impact of amici in national and regional courts, it recommends that the International Court of Justice expand its acceptance of submissions from nongovernmental organizations in appropriate cases. The Court has a jurisdictional basis to do so and amici have usefully contributed to cases before other courts.
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Shinkaretskaya, Galina Georgievna. "Proof in international court proceedings: articulation of the problem." Международное право, no. 4 (April 2020): 60–71. http://dx.doi.org/10.25136/2644-5514.2020.4.32613.
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One of the important elements of international court proceedings is the acquisition of information materials upon which the court makes its decisions. Such information, same as in the context of domestic courts, is called judicial evidence. The constituent documents of international courts contain very meager regulation of acquisition and evaluation of the evidence. The parties to international legal proceeding are the sovereign states, which makes it primarily adversarial. This implies that the parties represent the facts that confirm their positions. However, international courts rely on the principle of jura novit curia (“the court knows the law”), i.e. the parties to legal dispute do not need to plead or prove the law that applies to their case. This problem gains special importance due to the growing number and variety of international courts, as well as the emergence of a number of quasi-judicial institutions; in this sphere, all of them rely on the jurisprudence of the International Court of Justice. Certain new trends are traced in the practice of courts and even categories of cases that pertain to human rights.
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Muharremi, Robert. "The Concept of Hybrid Courts Revisited: The Case of the Kosovo Specialist Chambers." International Criminal Law Review 18, no. 4 (November 10, 2018): 623–54. http://dx.doi.org/10.1163/15718123-01804008.
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The article analyses and criticizes the concept of hybrid courts. The main proposition is that the concept of hybrid courts is unclear and that there are no clear criteria which would provide guidance for establishing if a judicial body is a hybrid court or not. The idea of hybrid courts is conceptually misleading because it creates the perception that hybrid courts are a separate institutional category different from international and domestic criminal courts. The author argues that the concept of hybrid courts should therefore be abandoned in favour of clearer criteria which distinguish between international and domestic courts. Analysing the Kosovo Specialist Chambers from this perspective, the author argues that the Kosovo Specialist Chambers are an international criminal court and not a domestic court which has legal implications, such as concerning immunity of heads of state.
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Sujayadi, Sujayadi. "INTERACTION BETWEEN THE SETTING ASIDE OF AN AWARD AND LEAVE FOR ENFORCEMENT* An Overview on Karaha Bodas Case Tension between U.S. Court and Indonesian Court." Yuridika 30, no. 2 (August 23, 2017): 333. http://dx.doi.org/10.20473/ydk.v30i2.4661.
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Karaha Bodas case is a notorious case which demonstrates how is unpredictable of the Indonesian court’s practice when facing cases related to arbitration. This case shows various aberrations of the principles that have been commonly accepted in international commercial arbitration but distorted in practice, especially in Indonesia, therefore many experts in the field of international commercial arbitration always mention this case as a “pathology” in international commercial arbitration.[1] This article will examine the interaction between the attempt to set aside of the award, while on the other hand the successful party requests for enforcement in other jurisdictions. The discussion will be focused on the standings of the U.S. courts toward the annulment proceeding in and the judgement of the District Court of Central Jakarta. The findings in this article show that the U.S. courts – like any other jurisdictions – disobeyed the judgement of the annulment which was rendered by Indonesian court, because Indonesian courts were the secondary jurisdiction. In addition, the courts in which the enforcement sought may have discretion whether they will or will not enforce an award which has been vacated in the country of origin. The discretion is guaranteed under the New York Convention 1958.
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Chayka, K. L. "The Genesis of International Justice." Rossijskoe pravosudie 2 (January 28, 2021): 13–19. http://dx.doi.org/10.37399/issn2072-909x.2021.2.13-19.
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The increasing number of international courts and their specialisation and the penetration of legal positions developed at the supranational level into the practice of domestic courts raise the question of the nature of international justice and its peculiarities. The concepts of national justice and the systemic nature of international courts are well developed in the doctrine, but the issue of international justice remains under-researched. Such an analysis is particularly important because of Russia's membership of the Eurasian Economic Union and the active use of supranational court positions in domestic law enforcement, including judicial enforcement. This article examines the current and historical approaches to the understanding of justice in Russian legal theory and the views of foreign scholarship on procedural justice, which is seen as equivalent to the category of «justice». The aim of this study is to formulate a concept of justice that is free from the peculiarities of national legal systems and able to explain the processes inherent in international courts. The question of the specific features of international justice will be answered, preceded by a reflection on the definition of «international judicial body» in the context of approaches of domestic as well as European. The method of induction has made it possible to identify the specific features inherent in universal international courts as well as in courts of integration associations and, on this basis, to provide a definition for «international judicial body». A comparison of the powers vested in the Court of Justice of the Eurasian Economic Union, the range of persons having the possibility to initiate dispute resolution, the binding and enforceable nature of its acts with similar rules in the activities of the UN International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Union provides empirical material for analysis of the specific features of the Eurasian dispute resolution body justice. The study concludes that the modern concept of national and international justice has its philosophical basis in the genesis of ideas about human rights and fundamental freedoms. International justice, however, is defined as the legal and procedural activity of an independent judiciary to apply the law and resolve legal conflict.
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Voeten, Erik. "Populism and Backlashes against International Courts." Perspectives on Politics 18, no. 2 (June 20, 2019): 407–22. http://dx.doi.org/10.1017/s1537592719000975.
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International courts, like domestic courts, protect liberal limits on majoritarianism. This sometimes puts these courts in a position to protect the property rights of the “corrupt elites” that are targeted by populists or the civil liberties of those who are targeted in domestic populist identity politics. Moreover, populism offers an ideology to attack the authority of a court rather than just its individual rulings. An empirical examination illustrates the plausibility of this argument. A large number of backlashes against international courts arise from judgments that reinforce local populist mobilization narratives. Populist backlashes against international courts are not just about sovereignty but often follow efforts to curb domestic courts, usually for similar reasons. Yet populist backlashes do not always succeed, either because populist leaders do not follow up on their exit threats or because populism is too thin an ideology for creating successful multilateral reform coalitions.
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Barry, Matthew. "The Role of the Seat in International Arbitration: Theory, Practice, and Implications for Australian Courts." Journal of International Arbitration 32, Issue 3 (May 1, 2015): 289–323. http://dx.doi.org/10.54648/joia2015012.
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A complex question in international commercial arbitration is the extent to which an enforcement court should defer to the decisions of courts at the seat of arbitration. In the recent case of Gujarat, the Federal Court of Australia held that it would generally be inappropriate for an Australian court, called upon to enforce an arbitral award under the International Arbitration Act 1974 (Cth) (IAA), to reach a different conclusion on the same question as that reached by the court at the seat of arbitration. This article critically examines Gujarat in light of the broader debate about the role of the seat in international arbitration jurisprudence. The article contends that the role of the seat is far from settled. In the first place, there are competing theories of international arbitration, each according to a different degree of importance to the seat of arbitration. Second, enforcement courts applying the provisions of the New York Convention have taken very different approaches to the decisions of courts at the seat of arbitration. US courts, for example, generally defer to the decisions of courts at the seat; French courts, on the other hand, tend to disregard the decisions of courts at the seat. Nevertheless, this article contends that the deferential approach taken by the Federal Court in Gujarat and the US courts is the correct one. Australian courts should, for strong policy reasons, defer to the decisions of courts at the seat of arbitration, save in exceptional cases where such decisions are shown on the basis of cogent evidence to be partial and dependent or in violation of basic principles of justice. This approach promotes finality and efficiency in international arbitration whilst upholding the international rule of law.
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Uzelac, Alan. "Supreme Courts in the 21st Century: should organisation follow the function?" Studia Iuridica 81 (October 24, 2019): 125–39. http://dx.doi.org/10.5604/01.3001.0013.5464.
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The text discusses different aspects connected with organisation of supreme courts. It argues that the focus should be shifted to the “how” question. If the supreme courts aspire to fulfil certain special functions, a necessary precondition towards fulfilling this goal entails appropriate organisational structures, means and personnel. The organisation, framework and methods of work of a supreme court should reflect the functions that it is supposed to serve. Although most supreme courts have staff, departments and offices that are entrusted with legal research and analysis, the rise in importance of international jurisprudence is putting on the agenda the need for restructuring and reinforcing the existing departments. The author claims that supreme courts are becoming less and less self-centred in their adjudication, which requires legal research of international and comparative law. The text also deals with other aspects of supreme courts’ organisation. For instance, it shifts focus towards the relation between the number of judges in a supreme court and its impact on the uniformity of jurisprudence. It also emphasises the need to further examine the relation between the number of judges per capita and the efficiency of the court’s work.
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Lupu, Yonatan, and Erik Voeten. "Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights." British Journal of Political Science 42, no. 2 (December 16, 2011): 413–39. http://dx.doi.org/10.1017/s0007123411000433.
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Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.
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Prete, Luca, and Nils Wahl. "The gatekeepers of Article 267 TFEU: On jurisdiction and admissibility of references for preliminary rulings." Common Market Law Review 55, Issue 2 (April 1, 2018): 511–47. http://dx.doi.org/10.54648/cola2018035.
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Traditionally, the Court of Justice has done its utmost to assist national courts in interpreting and applying EU law if national proceedings so required. In line with this spirit of co-operation, the Court seemed ready to interpret the procedural requirements laid down in Article 267 TFEU rather broadly, and gave little weight to procedural errors made by national courts when referring cases under that provision. Indeed, the Court sought to encourage the use of the preliminary ruling procedure. However, after experiencing a significant surge in its judicial activity over the last years, a new trend seems to emerge in the Court’s case law: the judges in Luxembourg more and more rigorously assess whether the formal preconditions for the Court’s jurisdiction and the admissibility of the questions referred by national courts under Article 267 TFEU are fulfilled. National judges as well as lawyers should be aware of this new judicial trend.
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Akinkugbe, Olabisi D., and Morris K. Odeh. "The Role of the Registry and Legal Division of the African Court of Human and People's Rights in Dispute Settlement." AJIL Unbound 116 (2022): 384–89. http://dx.doi.org/10.1017/aju.2022.69.
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This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement”1 through a comparative analysis of the role of the Secretariat within the African Court.2 Despite the growing jurisprudence and influence of Africa's international courts, they continue to be neglected by mainstream scholarship of international courts and tribunals. This is evident in Pauwelyn and Pelc's article, which does not refer to any of Africa's seven international courts and tribunals. For that matter, the article makes no reference to any international tribunal outside Europe or the United States.3 Our analysis illustrates the fact that the influence of the African Court's Registry and Legal Division (Registry) in the process for dispute settlement is not as significant and concerning as that of the WTO Secretariat. As such, the influence of the Registry on the outcome of a case is significantly limited and does not raise any legitimacy crisis like the WTO. We attribute this disparity to the operational and structural disparities between the African Court and the WTO. In the following paragraphs, we examine each of the factors that Pauwelyn and Pelc raise concerning the influence of the WTO staff in WTO panel and Appellate Body proceedings4 in the context of the functions of the African Court Registry.
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Koval, Dmytro. "Defining the National, Ethnic, Racial and Religious Groups of Genocide in the Practice of International Criminal Courts." NaUKMA Research Papers. Law 6 (February 15, 2021): 38–45. http://dx.doi.org/10.18523/2617-2607.2020.6.38-45.
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The article analyzes the approaches of international courts (the UN International Court of Justice, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and hybrid Extraordinary Chambers in the Courts of Cambodia) to the criteria for defining genocide groups. The article emphasizes that the definition of belonging to a group is a contextual circumstance (contextual element) of the crime of genocide. In particular, the paper studies how the international courts applied positive/negative and objective/subjective identification strategies to conclude that certain groups constitute those protected by the Genocide Convention or the statutes of the international criminal courts. In addition, the article deals with the problem of the stability and mobility of the groups and the ways these characteristics help the international courts to apply the Convention.The article focuses on a search for algorithms that allow international courts to identify genocide groups. It stresses that the international criminal courts have not demonstrated consistency in their assessment of the definition of the groups. Neither have they showed the synchronized understanding of the approaches (objective/subjective, positive/negative, stable/mobile) to be used for the identification of these groups. Therefore, it is further argued that, due to the variability of approaches and strategies used by international courts to identify genocide groups, belonging to the group is a window of opportunity for a contextual reading of international criminal law.
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Buromenskyi, Mykhailo, and Vitalii Gutnyk. "The Impact of ECHR and the Case-Law of the ECtHR on the Development of the Right to Legal Assistance in International Criminal Courts (ICTY, ICTR, ICC)." Baltic Journal of European Studies 9, no. 3 (September 1, 2019): 188–204. http://dx.doi.org/10.1515/bjes-2019-0029.
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Abstract The European Convention on Human Rights and the case-law of the European Court of Human Rights have a significant impact not only on national legal order but also on international criminal courts. The article is dedicated to analyzing that impact in the context of the right to legal assistance. We ascertain the purpose of the establishment of international criminal courts, the specificity of the right to legal assistance in the European system of human rights protection, the impact of the European Convention on Human Rights on the drafting of statutes of the international criminal courts and influence of the European Convention on Human Rights and case-law of the European Court of Human Rights on the interpretation of the right to legal assistance in the international criminal courts. Also the primacy of the right to legal assistance is proved, which is provided in the ECHR to the statutes of international criminal courts. At the same time, the international criminal courts, taking into account the purpose of their establishment and jurisdiction, give additional guarantees of the right to legal assistance.
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Squatrito, Theresa. "Judicial diplomacy: International courts and legitimation." Review of International Studies 47, no. 1 (November 6, 2020): 64–84. http://dx.doi.org/10.1017/s0260210520000352.
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AbstractObservers of international courts (ICs) note that several ICs carry out a broad range of non-judicial activities, ranging from legal training workshops and public seminars to visits with public officials. Despite the growing prominence of these activities, they have received little attention from scholars. Seeking to fill this gap, this article examines these activities as a form of ‘judicial diplomacy’, asking how and why ICs employ judicial diplomacy. The article argues that ICs use judicial diplomacy as a means of legitimation. They seek to boost institutional legitimacy through their judicial diplomacy by targeting the public and communicating norm-referential narratives about their processes and outcomes. This argument bears out in case studies on the judicial diplomacy of the African Court of Human and Peoples’ Rights and the Caribbean Court of Justice. Both courts are shown to have judicial diplomacy that is public-oriented and people-centred. This argument has important implications for literature on international courts and the legitimacy of international institutions.
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Enabulele, Amos O. "Sailing Against the Tide: Exhaustion of Domestic Remedies and the ECOWAS Community Court of Justice." Journal of African Law 56, no. 2 (August 23, 2012): 268–95. http://dx.doi.org/10.1017/s0021855312000058.
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AbstractThis article examines the practice of the ECOWAS Community Court of Justice relating to the exhaustion of domestic remedies. It argues that the court is wrong to maintain the view that it is not bound by the doctrine, simply because the court's protocol is silent on the point. The author urges the court to reconsider its view in order to align its practice with prevailing customary international law and treaty trends on the exhaustion of domestic remedies in international suits espoused before international courts by or on behalf of individuals.
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Barwick, Corey, and Ryan Dawkins. "Public Perceptions of State Court Impartiality and Court Legitimacy in an Era of Partisan Politics." State Politics & Policy Quarterly 20, no. 1 (December 24, 2019): 54–80. http://dx.doi.org/10.1177/1532440019883979.
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Why do some people evaluate state supreme courts as more legitimate than others? Conventional academic wisdom suggests that people evaluate courts in nonpartisan ways, and that people make a distinction between how they evaluate individual court decisions and how they evaluate the court’s legitimacy more broadly. We challenge this idea by arguing that people’s partisan identities have a strong influence on how people evaluate the impartiality of courts, just as they do other aspects of the political world. Using original survey experiments, validated by existing observational survey data, we show that people perceive state supreme courts as being more impartial when courts issue decisions that match the ideological preferences of their preferred political party, while court decisions at odds with their party’s policy goals diminish people’s belief that courts are impartial arbiters of the law. We also show that the effects of citizen perceptions of impartiality erode evaluations of state court legitimacy, which makes them want to limit the independence of judicial institutions.
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Kunz, Raffaela. "Judging International Judgments Anew? The Human Rights Courts before Domestic Courts." European Journal of International Law 30, no. 4 (November 2019): 1129–63. http://dx.doi.org/10.1093/ejil/chz063.
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Abstract In recent times, instances of contestation against the European Court of Human Rights and the Inter-American Court of Human Rights have made headlines, and, in many of these cases, domestic courts have played a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This article undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this reflects to some extent the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the article argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.
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STAPPERT, NORA. "A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals." Leiden Journal of International Law 31, no. 4 (September 19, 2018): 963–80. http://dx.doi.org/10.1017/s0922156518000377.
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AbstractWhat role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.
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Manzhosov, Sergei, and Sergey Belov. "Decisions of International Courts: Following Precedents or Consistent Jurisprudence?" Meždunarodnoe pravosudie 10, no. 4 (2020): 3–21. http://dx.doi.org/10.21128/2226-2059-2020-4-3-21.
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The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider. The courts recognize their duty to follow the sustainable interpretation of international law, as it appears in the own practice of these courts and other international authorities, because this is crucial for the definiteness of legal regulation, predictability of judicial decisions and consistency of legal solutions. The international courts reject following precedents according to the stare decisis rule and are very caution to declare following the concept of jurisprudence constant, trying to be equidistant to particular legal traditions. The legal acts regulating the international justice favour this caution, as they establish the binding force of judicial decisions only inter partes and within concrete case. In a case of need to deviate from the established practice both the International Court of Justice, International Criminal Court, European Court of Human Rights and international investment arbitration tribunals tend to (1) appeal to formal arguments of non-binding force of previous decisions, or (2) argue the differences of considering case with preceding cases, or (3) base on notions developed in their practice – e.g., the idea of “European consensus” in the practice of the European Court of Human Rights.
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Тетяна Андріївна Цувіна. "Online courts and Online Dispute Resolution in terms of the international standard of access to justice: international experience." Problems of Legality, no. 149 (June 9, 2020): 62–79. http://dx.doi.org/10.21564/2414-990x.149.201782.
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The article is devoted to the analysis of the problem issues of the Online Dispute Resolution (ODR) through the prism of international standard of access to justice in civil matters. The first part of the article refers to terminological inconsistency, which is connected with using of three synonyms refering to IT-technologies in the area of civil justice, in particular cyberjustice, digital justice and e-justice. The author proposes to use term “e-justice”, which involves e-filing, electronic systems of assignment of cases, e-case-management, eDiscovery, ODR, electronic systems of court practice, using of Artificial Intelligence in civil proceedings. In the second part of the article the narrow and wide approach to the ODR are described. According to narrow approach ODR is described as online ADR. Wide approach to ODR includes online ADR as well as online courts. Today wide approach is more valid taking into account recent developments in the field of online courts in foreign countries. The third part of the article describes different types of online courts, in particular, online Civil Resolution Tribunal (British Columbia, Canada), Online Solutions Court (Great Britain) etc. The author analyzes current innovations in the structure of online courts, connected with integration of information systems and online ADR into the online courts platforms. Special attention is paid to the use of Artificial Legal Intelligence in courts with references to advantages and challenges of such innovations.
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Figura-Góralczyk, Edyta. "O potrzebie utworzenia wyspecjalizowanych sądów do rozstrzygania międzynarodowych spraw handlowych – doświadczenia Niemiec oraz innych wybranych państw członkowskich UE." Prawo w Działaniu 42 (2020): 189–206. http://dx.doi.org/10.32041/pwd.4208.
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The article discusses specialized courts for Cross-border commercial cases in Germany and other selected Member States of the European Union. The article is divided into four parts, including: (1) introduction; (2) a discussion of the specialized court for cross-border commercial cases in Frankfurt on the Main; (3) a comparison of the aforementioned German court to initiatives in France, the Netherlands, and Ireland, as well as at initiatives at EU level; and (4) conclusions. The aim of this article is to emphasise the need for specialization on the court’s part in the field of resolving international commercial disputes on the basis of experiences from Germany and selected other EU Member States. The direct impulse for establishing specialized courts for cross-border commercial cases was caused by the UK’s exit from the EU (Brexit). The German initiative fits in with European initiatives taking place in Ireland, France and the Netherlands in the field of appointing courts before which proceedings could be brought in international commercial disputes. On the basis of experiences of those countries such courts should have the following features: (1) the proceedings should be conducted in English, both the oral part and the written part; (2) it is best when among judges, all of whom speak English, there are ‘experts’ in international commercial disputes; (3) the proceedings should be de-formalized and as short as possible; (4) the parties should be given the autonomy to choose the court’s jurisdiction; (5) the costs of proceedings should be competitive compared to costs of similar proceedings in other EU Member States.
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Stevanović, Balša. "International commercial courts as new actors in adjudication business: Collaborators or competitors?" Pravo i privreda 59, no. 1 (2021): 52–71. http://dx.doi.org/10.5937/pip2101052s.
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International commercial courts are a relatively new phenomenon that changes the configuration of the international adjudication business. As novel players on the dispute resolution scene, these courts challenge the notion of competition between the existing actors in the business. From the perspective of arbitration, international commercial courts tend to be perceived as both collaborators and competitors. Furthermore, various driving forces influenced the creation of these courts, which gave them a hybrid structure and a quite unique institutional appearance. This article examines three prominent courts in three different parts of the world: the Dubai International Financial Centre Courts (DIFCC), the Singapore International Commercial Court (SICC) and the Netherlands Commercial Court (NCC). The aim is to identify the main features of these adjudication actors that operate within three highly commercially relevant geographic regions in order to outline their character and role on the adjudication business stage. Eventually, through these examples this article addresses the puzzling question of competition versus cooperation in contrast to arbitration. Nevertheless, it is still hard to give a definitive answer - it seems too early for a firm prediction regarding the future of these projects. Jurisprudence must be developed in order to comprehensively test the success of international commercial courts
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Sattar, Sameer. "National Courts and International Arbitration: A Double-edged Sword?" Journal of International Arbitration 27, Issue 1 (February 1, 2010): 51–73. http://dx.doi.org/10.54648/joia2010004.
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International arbitrations play a key role in resolving cross border commercial disputes. Parties choose international arbitration primarily because it enables the parties to have their disputes adjudicated without any involvement of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct of international arbitrations and to ensure that the arbitral process meets the due standards of fairness. However, in recent times, the involvement of national courts in aid of effective arbitrations seems to be a growing concern since their involvement tends to hinder the arbitral process rather than protecting the same. In many cases, it can be seen that the supervisory and curial powers are being misused by national courts, the victims of which are parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in detail the problems arising out of the national court’s role in international arbitrations and highlights few of the leading cases where the national court’s involvement has adversely affected international arbitrations. It also notes the possible dangers associated with undue interferences by national courts which may give rise to state liability under international law. In this connection, the recent landmark decision of Saipem v. Bangladesh is analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international arbitrations to exercise their powers cautiously.
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VAN ALEBEEK, ROSANNE. "Domestic Courts as Agents of Development of International Immunity Rules." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 559–78. http://dx.doi.org/10.1017/s0922156513000241.
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AbstractThis paper explores the role of domestic courts in the development of international immunity rules. It assesses how domestic immunity decisions take meaning in the process of law formation and law determination, and examines whether the distinct influence of domestic-court decisions (as compared to international-court decisions) in that process results in a different role, and concomitant different rules, in the process of interpretation of rules of international law. The paper argues that while domestic courts are as a matter of international law bound by the same rules of interpretation as international courts, they are particularly well placed to address access to court concerns raised by immunity rules and may play a prominent role in the development of international law in this field in the years to come.
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HANSEN, THOMAS TRIER. "IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS STANDARDS THROUGH THE NATIONAL COURTS IN MALAWI." Journal of African Law 46, no. 1 (April 2002): 31–42. http://dx.doi.org/10.1017/s0221855302001773.
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This article discusses the application of international human rights law by the courts in Malawi. It is divided into five parts. The first part examines the constitutional position of international law at the municipal level and will focus primarily on the position under the current Constitution of Malawi. The second discusses the relevance of international human rights law before national court, with the third part then analysing the relevance of such law in the courts. The fourth part considers the reasons for the attitude of the courts to international human rights law, whilst the final part contains some concluding remarks. The case law discussed is largely that handed down by the Supreme Court and the High Court since 1994.
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Ekori, Aghem Hanson, and Paul S. Masumbe. "Putin on Trial: The Reality of Heads of State Immunity before International Criminal Courts." Polit Journal: Scientific Journal of Politics 2, no. 1 (April 5, 2022): 29–36. http://dx.doi.org/10.33258/polit.v2i1.621.
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The prosecution of serving heads of state before international criminal courts is still very challenging even though most of these courts do not recognise immunities for international crimes. While the recognition of head of state immunity before national and foreign domestic courts for international crimes is supported by customary international law, the recognition of immunities before international criminal courts is determined by the statute creating the court.. Consequently, while the Rome Statute creating the International Criminal Court (the ICC) does not recognise any form of immunity, the Malabo Protocol creating the African Criminal Court (the ACC) recognised the immunity of senior serving state officials for international crimes. Currently, the ICC is investigating the situation in Ukraine which may lead to the possible arrest of President Putin of Russia and his senior officials for crimes against humanity and war crimes committed when Russia invaded Ukraine. The article argues that prosecuting a serving president like Putin by the ICC may be similar to the Al Bashir case because it will be difficult to arrest and surrender him to the Court and also the fact that Russia is not state party to the Rome Statute. Consequently, the waiving of immunity before an international court is not enough; cooperation by the home state of the offender and other states is needed in matters arrest and surrender to the prosecuting court.