While it is universally accepted that the advisory opinions rendered by the International Court of Justice (ICJ or Court) are not binding as such, scholarly discourse continues to ponder upon whether these opinions can confer any definitive legal effects. The scope of the legal implications stemming from such opinions is considerably broad, encompassing statements of solely evidentiary significance, determinations demanding due consideration, through to authoritative ‘givens’ that are beyond contestation. Examples elucidating these diverse interpretations permeate both academic literature and international practice with the most recent example being the International Tribunal for the Law of the Sea (ITLOS) Special Chamber’s Mauritius/Maldives Judgment, wherein the findings presented in the Chagos Advisory Opinion were treated as authoritative pronouncements of international law with opposable legal effects. This article posits a departure from the mainstream standpoint, contending that while the ICJ’s advisory determinations are non-binding, they are capable of being authoritatively definitive in declaring what international law is in a specific context. The article also suggests that the authority vested in a judicial pronouncement, determining the content of international law, may go beyond its bindingness contingent upon the stature of the authoring entity.
{"title":"Unveiling the ‘author’ of international law — The ‘legal effect’ of ICJ’s advisory opinions","authors":"Vahid Rezadoost","doi":"10.1093/jnlids/idae015","DOIUrl":"https://doi.org/10.1093/jnlids/idae015","url":null,"abstract":"While it is universally accepted that the advisory opinions rendered by the International Court of Justice (ICJ or Court) are not binding as such, scholarly discourse continues to ponder upon whether these opinions can confer any definitive legal effects. The scope of the legal implications stemming from such opinions is considerably broad, encompassing statements of solely evidentiary significance, determinations demanding due consideration, through to authoritative ‘givens’ that are beyond contestation. Examples elucidating these diverse interpretations permeate both academic literature and international practice with the most recent example being the International Tribunal for the Law of the Sea (ITLOS) Special Chamber’s Mauritius/Maldives Judgment, wherein the findings presented in the Chagos Advisory Opinion were treated as authoritative pronouncements of international law with opposable legal effects. This article posits a departure from the mainstream standpoint, contending that while the ICJ’s advisory determinations are non-binding, they are capable of being authoritatively definitive in declaring what international law is in a specific context. The article also suggests that the authority vested in a judicial pronouncement, determining the content of international law, may go beyond its bindingness contingent upon the stature of the authoring entity.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"92 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141742616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The jurisprudence concerning the continental shelf delimitation beyond 200 nautical miles (nm) over the past decade converged on distinguishing delineation from delimitation, which justifies the appropriateness of the judiciary to delimit the continental shelf beyond 200 nm in the absence of the recommendations issued by the Commission on the Limits of the Continental Shelf (CLCS). Mauritius/Maldives decided by a special chamber of the International Tribunal for the Law of the Sea departs from the established jurisprudence. By applying a ‘significant uncertainty’ standard that puts the relationship between entitlement and delimitation in the centre, Mauritius/Maldives reasons against exercising jurisdiction over the delimitation beyond 200 nm without affirmative recommendations of the CLCS. Mauritius/Maldives reflects judicial restraint in contrast with a more proactive approach prevailing in previous jurisprudence.
{"title":"Continental shelf delimitation beyond 200 nautical miles: Mauritius/Maldives and the forking paths in the jurisprudence","authors":"Xuexia Liao","doi":"10.1093/jnlids/idae009","DOIUrl":"https://doi.org/10.1093/jnlids/idae009","url":null,"abstract":"The jurisprudence concerning the continental shelf delimitation beyond 200 nautical miles (nm) over the past decade converged on distinguishing delineation from delimitation, which justifies the appropriateness of the judiciary to delimit the continental shelf beyond 200 nm in the absence of the recommendations issued by the Commission on the Limits of the Continental Shelf (CLCS). Mauritius/Maldives decided by a special chamber of the International Tribunal for the Law of the Sea departs from the established jurisprudence. By applying a ‘significant uncertainty’ standard that puts the relationship between entitlement and delimitation in the centre, Mauritius/Maldives reasons against exercising jurisdiction over the delimitation beyond 200 nm without affirmative recommendations of the CLCS. Mauritius/Maldives reflects judicial restraint in contrast with a more proactive approach prevailing in previous jurisprudence.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"14 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140198248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Drawing on insights and methods from International Law, International Relations and Linguistics, the article untangles the discursive legitimation efforts of international adjudicative bodies. Adopting a mixed-methods approach that combines supervised learning methods, corpus methods and Critical Discourse Analysis it analyses the language of legitimation in the jurisprudence of the International Court of Justice and the World Trade Organization’s Appellate Body over a period of 20 years (1996–2016). In so doing, the article cuts across disciplinary divides and offers a novel and empirically informed perspective to ongoing debates on the discursive legitimation of international adjudicative bodies.
{"title":"The legitimation of international adjudication","authors":"Zuzanna Godzimirska","doi":"10.1093/jnlids/idad032","DOIUrl":"https://doi.org/10.1093/jnlids/idad032","url":null,"abstract":"Drawing on insights and methods from International Law, International Relations and Linguistics, the article untangles the discursive legitimation efforts of international adjudicative bodies. Adopting a mixed-methods approach that combines supervised learning methods, corpus methods and Critical Discourse Analysis it analyses the language of legitimation in the jurisprudence of the International Court of Justice and the World Trade Organization’s Appellate Body over a period of 20 years (1996–2016). In so doing, the article cuts across disciplinary divides and offers a novel and empirically informed perspective to ongoing debates on the discursive legitimation of international adjudicative bodies.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"14 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139578234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although the adjudication of a maritime boundary dispute is usually a bilateral process, it is also often the case that third States have an interest in the delimitation to be carried out. Coupled with the potential for the delimitation decisions of courts and tribunals to impact their maritime claims or entitlements, this raises the concern that third State interests could be prejudiced by such a dispute settlement process, without their participation. While third-party intervention has been suggested as a possible means of recourse for such third States, this article argues that third States may, in practice, be hesitant of resorting to intervention. This is because attempts to intervene, whether successful or unsuccessful, are likely to entail the court or tribunal’s eventual decision having some legally binding effects on the third State. Further, alternative options remain available to third States desirous of a platform to make their interests known.
{"title":"The effects of third-party intervention in the adjudication of maritime delimitation disputes","authors":"Stephany Aw","doi":"10.1093/jnlids/idad029","DOIUrl":"https://doi.org/10.1093/jnlids/idad029","url":null,"abstract":"Although the adjudication of a maritime boundary dispute is usually a bilateral process, it is also often the case that third States have an interest in the delimitation to be carried out. Coupled with the potential for the delimitation decisions of courts and tribunals to impact their maritime claims or entitlements, this raises the concern that third State interests could be prejudiced by such a dispute settlement process, without their participation. While third-party intervention has been suggested as a possible means of recourse for such third States, this article argues that third States may, in practice, be hesitant of resorting to intervention. This is because attempts to intervene, whether successful or unsuccessful, are likely to entail the court or tribunal’s eventual decision having some legally binding effects on the third State. Further, alternative options remain available to third States desirous of a platform to make their interests known.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"48 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138560412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"New developments in the interpretation and application of the clean hands doctrine by investment tribunals","authors":"P. Dumberry","doi":"10.1093/jnlids/idad027","DOIUrl":"https://doi.org/10.1093/jnlids/idad027","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"21 2","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139250550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Over the last decades, the role of international arbitrators has evolved from dealing with purely private interests to promoting the rule of law worldwide and safeguarding the interests of the international community. Following the armed conflict in Ukraine, a plurality of States has enacted international sanctions against Russia, which are currently impacting the performance of many international contracts. This article analyses the enforcement of international sanctions by international arbitrators as a matter of overriding mandatory public policy rules. This article also draws a new perspective on the subject, by analysing it from two different yet complementary approaches. First, because national courts have supervisory powers at the post-award stage, the reasoning of international arbitrators may depend on whether such international sanctions are regarded as public policy rules within relevant national legal orders. Secondly, because international arbitral tribunals have no forum, their decision regarding the enforcement of international sanctions will depend on the existing legal theories of international arbitration. After comparing the different results under the territorial, multilocal, and transnational approaches, the author advocates for the enforcement of international sanctions against Russia as part of transnational public policy rules.
{"title":"International sanctions enacted against Russia as overriding mandatory rules—on which foot should international arbitrators stand?","authors":"Maxime Chevalier","doi":"10.1093/jnlids/idad022","DOIUrl":"https://doi.org/10.1093/jnlids/idad022","url":null,"abstract":"Abstract Over the last decades, the role of international arbitrators has evolved from dealing with purely private interests to promoting the rule of law worldwide and safeguarding the interests of the international community. Following the armed conflict in Ukraine, a plurality of States has enacted international sanctions against Russia, which are currently impacting the performance of many international contracts. This article analyses the enforcement of international sanctions by international arbitrators as a matter of overriding mandatory public policy rules. This article also draws a new perspective on the subject, by analysing it from two different yet complementary approaches. First, because national courts have supervisory powers at the post-award stage, the reasoning of international arbitrators may depend on whether such international sanctions are regarded as public policy rules within relevant national legal orders. Secondly, because international arbitral tribunals have no forum, their decision regarding the enforcement of international sanctions will depend on the existing legal theories of international arbitration. After comparing the different results under the territorial, multilocal, and transnational approaches, the author advocates for the enforcement of international sanctions against Russia as part of transnational public policy rules.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":" 572","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135185974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract New international commercial courts can be analysed by examining how their features differ from those of their domestic counterpart courts and from those of international commercial arbitration. This conceptual tool is termed delocalization. Higher and lower levels of featural differences, or delocalization, may affect a new court’s reception, whether local actors can participate in the new court and the new court’s relations with the domestic courts. These factors influence the extent and speed of a new court’s integration into the legal landscape as an institutional transplant. A delocalization analysis can also help track the new and domestic courts’ continuing influence over each other and the adoption, sharing or abandonment of features over time.
{"title":"New international commercial courts: a delocalized approach","authors":"Sean David Yates","doi":"10.1093/jnlids/idad024","DOIUrl":"https://doi.org/10.1093/jnlids/idad024","url":null,"abstract":"Abstract New international commercial courts can be analysed by examining how their features differ from those of their domestic counterpart courts and from those of international commercial arbitration. This conceptual tool is termed delocalization. Higher and lower levels of featural differences, or delocalization, may affect a new court’s reception, whether local actors can participate in the new court and the new court’s relations with the domestic courts. These factors influence the extent and speed of a new court’s integration into the legal landscape as an institutional transplant. A delocalization analysis can also help track the new and domestic courts’ continuing influence over each other and the adoption, sharing or abandonment of features over time.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135303807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Over the past decade, non-participation in inter-state cases has been on the rise. While previous research on the topic has centred around the impact of states' non-participation, this article delves into the reasons behind non-participation. By analysing states’ public statements, diplomatic documents, informal correspondence with adjudicators, as well as commentators’ views, this article describes the evolution of reasons for non-participation. The research reveals that over time, more states refer to jurisdictional objections, doubts about the impartiality of adjudicators and concerns about the strategic use of judicial proceedings for achieving political goals as reasons for non-participation. Moreover, the reasons behind non-participation have become increasingly diverse. These findings suggest a growing sense of distrust and suspicion towards the use of international courts and tribunals to resolve inter-state disputes.
{"title":"Why states refuse to participate in judicial proceedings: uncovering key reasons and historical evolution","authors":"Ying Sun","doi":"10.1093/jnlids/idad020","DOIUrl":"https://doi.org/10.1093/jnlids/idad020","url":null,"abstract":"Abstract Over the past decade, non-participation in inter-state cases has been on the rise. While previous research on the topic has centred around the impact of states' non-participation, this article delves into the reasons behind non-participation. By analysing states’ public statements, diplomatic documents, informal correspondence with adjudicators, as well as commentators’ views, this article describes the evolution of reasons for non-participation. The research reveals that over time, more states refer to jurisdictional objections, doubts about the impartiality of adjudicators and concerns about the strategic use of judicial proceedings for achieving political goals as reasons for non-participation. Moreover, the reasons behind non-participation have become increasingly diverse. These findings suggest a growing sense of distrust and suspicion towards the use of international courts and tribunals to resolve inter-state disputes.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135967137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Cutting off the King’s Head: Rethinking Authority in International Law","authors":"","doi":"10.1093/jnlids/idad018","DOIUrl":"https://doi.org/10.1093/jnlids/idad018","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"13 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88901251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Journal Article Affects, Emotions, and the Cartesian Epistemology of International Law Get access Jean d’Aspremont Jean d’Aspremont Email: Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, Volume 14, Issue 3, September 2023, Pages 281–284, https://doi.org/10.1093/jnlids/idad019 Published: 22 August 2023
期刊文章影响、情感与国际法的笛卡尔认认论获取Jean d 'Aspremont Jean d 'Aspremont电子邮件:Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334搜索作者其他作品:牛津学术谷歌学者国际争端解决杂志，第14卷第3期，2023年9月，281-284页，https://doi.org/10.1093/jnlids/idad019出版日期:2023年8月22日
{"title":"Affects, Emotions, and the Cartesian Epistemology of International Law","authors":"Jean d’Aspremont","doi":"10.1093/jnlids/idad019","DOIUrl":"https://doi.org/10.1093/jnlids/idad019","url":null,"abstract":"Journal Article Affects, Emotions, and the Cartesian Epistemology of International Law Get access Jean d’Aspremont Jean d’Aspremont Email: Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, Volume 14, Issue 3, September 2023, Pages 281–284, https://doi.org/10.1093/jnlids/idad019 Published: 22 August 2023","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135716133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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