Judicial integration and fragmentation in the international legal system

International Court of Justice
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The author sets out the elements and how they affect integration and fragmentation in Chapter 5. She classifies the elements in three categories: A what she calls identity of the court; B the substance of law; and C the procedure employed by the Court and how it shapes the judicial decision-making.

In her view, with regard to the substantive law, and depending on the kind of rules governing the area treaty or customary , the level of devel- opment of the latest rules and the level of development of the dispute indicate the potential for fragmentation. When there is a high level of discussion on an issue in an area that is underdeveloped, the risk of differing case law increases.

In our opinion, a juridical question must be resolved within a judicial framework, leaving aside the political aspects, which do not coincide with the function of a court. The political dispute in a case before the court could only be skimming the surface, and, admittedly, this is not an excuse to promote draining cases from the docket of those cases sub- mitted to the court. Making use of the particular procedure involved, Webb deals with two elements: the evidence and fact-finding process and the rea- soning process of the judgment.

The first element suggests that treatment by the court of fact-finding and the appraisal of evidence without a standard rule could foster the fragmentation of adjudication. The second element, related to the rough written draft of the judgment, is about process rather than sub- stance.

This is a difficult point to describe due to the limited information and secrecy surrounding the deliberation and drafting process of a judgment, but Webb uses other sources, apart from using sentences like assertions p. One such feature which facilitates integration is the collective meetings of judges whereby they bring into contact ideas of other legal systems or case law; the reasoning process employed by the International Court of Justice rep- resents a good example of this.

Nonetheless, in our opinion, there seems to be friction between this assertion p. Such practice undermines the dialogue between courts and the possibility of providing integrated adjudica- tion within the same factual situation. As one of the main conclusions of the book indicates, international courts and tribunals make the law and do not just interpret it. This runs in direct contradiction to the sacrosanct idea of Article 38 of the ICJ Statute dealing with judicial decisions.

Fragmentation and Constitutionalization - Oxford Handbooks

However, accord- ing to the author, this idea is underpinned by the laissez-faire of the interna- tional community, which does not refuse, but accepts, law-making judgments. However, the author does not broadly develop the idea, so it is not actually clear if these courts are lawmakers or if this is only tailored to fit the reaction of the international community. In addition, the book provides proposals for enhanced integration and coor- dination between international courts.

Webb suggests a model of structured inter-court dialogue with a prominent, but not monopolistic, role for the ICJ, including formal reforms in order to establish systematic legal norms.


In our opinion, the establishment of a constant fluent dialogue between interna- tional courts is worthy of praise. However, the idea of a prominent spotlight for the ICJ requires sound justification due to the differences in scope and aims of the wide range of international courts, and the reluctance of powerful States to increase the authority of such an organ. Thus, a special status for the ICJ has to be duly vindicated. This implies, first, that the reader needs to handle a lot of information however, Webb shows a full mastery of the sources relied on ; and, second, this provides a better legal foundation for the ideas asserted by the author.

This book offers an interpretation of substantive law pronounced by inter- national courts through , which makes it a useful material for international legal practitioners. In addition, it comprises a good example of scholarly litera- ture for the study of certain core areas of international law genocide, immuni- ties and the use of force. There is no easy solution to this problem but, nevertheless, the author courageously addresses the issue. In this case, our civilization is the entire international legal system, and we need to overcome any obstacles that lead to its decay.

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States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state the realm of private international law for an injury, though this is a complicated area of law where international law intersects with domestic law. It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations , that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them.

Article 51 of the UN Charter guarantees the right of states to defend themselves until and unless the Security Council takes measures to keep the peace. As a "deliberative, policymaking and representative organ", the United Nations General Assembly "is empowered to make recommendations"; it can neither codify international law nor make binding resolutions.

The Assembly also declared, by its adoption of resolution A , that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace". The Uniting for Peace resolution was initiated by the United States in , shortly after the outbreak of the Korean War , as a means of circumventing possible future Soviet vetoes in the Security Council. The legal role of the resolution is clear, given that the General Assembly can neither issue binding resolutions nor codify law.

It was never argued by the "Joint Seven-Powers" that put forward the draft resolution, [43] during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council.

Alleged violations of the Charter can also be raised by states in the Security Council. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24 2 , which states that "in discharging these duties exercise of primary responsibility in international peace and security , it shall act in accordance with the Purposes and Principles of the United Nations". The binding nature of such resolutions can be deduced from an interpretation of their language and intent. States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice , located in The Hague , Netherlands.

The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the court's competence and jurisdiction. Often enormously complicated matters, ICJ cases of which there have been less than since the court was created from the Permanent Court of International Justice in can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist international lawyers.

As of June , there are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states or increasingly, international organizations are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

Investment treaties commonly and routinely provide for enforcement by individuals or investing entities. There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. There were ambitions to make the East African Community, consisting of Kenya , Tanzania , Uganda , Burundi and Rwanda , a political federation with its own form of binding supranational law, but this effort has not materialized.

It intends to establish a framework akin to the European Union by the end of It is envisaged to have its own passport and currency, and limit barriers to trade. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries. International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements.

Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance.

The Practice of International and National Courts and the (De-)Fragmentation of International Law

Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them.

Some of these approaches are based on domestic legal theory , some are interdisciplinary , and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law , the Eclectic and the Legal positivism schools of thought. The natural law approach argues that international norms should be based on axiomatic truths. In Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentium , established by the consent of the community of nations on the basis of the principle of pacta sunt servanda , that is, on the basis of the observance of commitments.

On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty , and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the Peace of Westphalia. The early positivist school emphasized the importance of custom and treaties as sources of international law.

Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics.

The Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe. Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an " objective " reality that needs to be distinguished from law "as it should be. Nation-states observe the principle of par in parem non habet imperium , 'Between equals there is no sovereign power'. John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments Article 2 1 of the UN Charter confirms this Sovereignty of Nations; no state is in subjection to any other state.

For treaties bind only those who sign them. Since states are few in number, diverse and atypical in character, unindictable, lacking a centralised sovereign power, and their agreements unpoliced and decentralised, [52] then, says Wight, 'international society is not a society at all. The condition of international relations is best described as international anarchy;. This is why international politics is called power politics War is the only means by which states can in the last resort defend vital interests On the subject of treaty law, Charles de Gaulle said this; 'Treaties are like pretty girls, or roses; they last only as long as they last.

For Hans Morgenthau , international law is the weakest and most primitive system of law enforcement.

The Late Antonio Cassese

Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies. Morgenthau asserts that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary.

Legal System Basics: Crash Course Government and Politics #18

Later surveys have produced similar contradictory results. From Wikipedia, the free encyclopedia. For the 18th-century political treatise, see The Law of Nations. Regulations governing international relations. Main article: History of international law. See also: Monism and dualism in international law. Main article: Law of the Sea. Main articles: Intergovernmental organization and Global administrative law. See also: Conflicts of laws.