The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea

Brabandere, Eric De

doi:10.1163/15718034-12341311

Cited by 25 publications

(4 citation statements)

References 1 publication

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“…For some recent criticism of the international tribunals' approach to delimitation, see MD Evans, references by the ICJ to the maritime delimitation decisions by other international tribunals 'may indicate a … trend towards showing that the ICJ's decision is consistent with the case law of other courts and tribunals'. 110 Applying Article 15 UNCLOS by means of the two-stage approach could increase predictability and certainty in the law of maritime delimitation, an objective avowedly pursued by international tribunals.…”

Section: B the Methods For The Application Of Article 15 Unclosmentioning

confidence: 99%

Judicial Uncertainties Concerning Territorial Sea Delimitation Under Article 15 of the United Nations Convention on the Law of the Sea

Lando

2017

ICLQ

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Recent international jurisprudence has shown considerable uncertainty with regard to the delimitation of the territorial sea. While international tribunals endorse a two-stage approach to territorial sea delimitation, there is a lack of judicial consensus on the practical implementation of such an approach. This article argues that the rule-exception relationship between equidistance and special circumstances, as reflected in the drafting history of LOSC Article 15 and in jurisprudence prior to 2007, should inform the delimitation of the territorial sea. Cases since 2007 which have strayed from the earlier jurisprudence on LOSC Article 15, should be seen as a misconstruction of the law applicable to territorial sea delimitation.

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Section: B the Methods For The Application Of Article 15 Unclosmentioning

confidence: 99%

Judicial Uncertainties Concerning Territorial Sea Delimitation Under Article 15 of the United Nations Convention on the Law of the Sea

Lando

2017

ICLQ

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“…Except for the "constant and uniform usage", the ICJ also used "extensive and virtually uniform" in recent practice. 6 In the case of Fisheries Jurisdiction, the court referred to the extension of the fishing area to 12 nautical miles, which seems to be generally accepted. However, the court refused to predict the law before the legislator makes it and the increasing acceptance of the concept was also mentioned to talk about the element of general practice [7].…”

Section: (A) General Practicementioning

confidence: 99%

“…This means that the decisions of ICJ may be changed and challenged if the Court finds particular and valid reasons. For example, in Barcelona Traction case, the Court distinguished the interpretation of 'in force' of a former case of Aerial Incident [6].…”

Section: The Decisions Of Icj May Be Changed and Challengedmentioning

confidence: 99%

Should the Decisions of the International Court of Justice and the Work of the International Law Commission be Recognized as Binding Sources of International Law?

Yan¹

2022

JMHR

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This year marks the 76th anniversary of the first sitting of the International Court of Justice, and the article 38(1) of the Statute of the International Court of Justice is considered to be one of the most authoritative guides for ICJ when deciding international disputes. However, whether this provision is complete and covers all the sources of international law are of concern. Someone argues that decisions of the International Court of Justice, and the work of the International Law Commission, should be recognized as binding sources of international law as well. This essay is going to focus on the sources of international law listed in the article 38(1) of the Statute and other possible sources which are not included in this article. In addition, it will discuss the judicial decisions of the ICJ, the work of ILC, and the reasons for not adding them into the sources of international law.

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“…115 This assertion will surely be scrutinised given the contentious role of judicial precedent in international law, 116 but it finds support in the Court's past attention to the importance of ensuring consistency and predictability, particularly on procedural issues. 117 For present purposes, it provides an alternative explanation to counter the presumption that only national bias could explain his approach to the dispute requirement in the Nuclear Disarmament cases. Similarly, Judge Donoghue, who also expressed a different view of the dispute requirement in Georgia v Russia, explained that her votes in the Nuclear Disarmament caseswhich were consistent…”

mentioning

confidence: 99%

The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice

Becker¹

2017

CILJ

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On 5 October 2016, the International Court of Justice upheld preliminary objections to its jurisdiction in three separate cases relating to nuclear disarmament brought by the Republic of the Marshall Islands. India, Pakistan, and the United Kingdomthe three respondent Statesargued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court's approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties' claims (Part 2). It then analyses the Court's reasoning with respect to whether a dispute was present (Part 3) and explains how the Court's approach to the 'dispute requirement', a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).

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The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea

Cited by 25 publications

References 1 publication

Judicial Uncertainties Concerning Territorial Sea Delimitation Under Article 15 of the United Nations Convention on the Law of the Sea

Judicial Uncertainties Concerning Territorial Sea Delimitation Under Article 15 of the United Nations Convention on the Law of the Sea

Should the Decisions of the International Court of Justice and the Work of the International Law Commission be Recognized as Binding Sources of International Law?

The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice

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