Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.
This article explores capacity to marry in depth, beyond the literal statements presented by legal acts in Estonia. Th e discussion will be focusing on answering the following questions: What is the nature of marriage capacity and how it has been developed in Estonia? What are the values that the Estonian Family Law Act (2010) protects when regulating marriage capacity? In addition a brief comparative analysis will seek to explain how different regulations of the EU member states on the same matter (marriage capacity) are. Th is can also help discussions on whether is it justified to talk about cultural differences of EU member states in the context of marriage capacity or not.
Authoritarian governments are by their very nature unconstitutional. Such government thinks of themselves as above the law, and therefore sees no necessity for separation of powers or representative governance. Constitutional democracy on the other hand, is however based on the notion of people’s sovereignty, which is to be exercised in limited manner by a representative government. Accordingly, judicial activism in this paper is employed to establish the theory of popular participation of courts in the decision making processes through settlement of disputes, interpretation or construction of laws, determination of propriety of legislations, legislative and execution actions within the doctrine of separation of powers for the purpose of enforcement of the limitations in government on constitutional ground. This paper thus examines the concept of judicial activism, its legitimacy and as a mechanism for providing checks and balances in the Nigerian government. The paper demonstrates a game theory of judicial legislative interaction within their function and contends that the notion of judicial supremacy does not hold water because the legislature always has the second chance of invalidating the judgment of courts exercising the legitimate powers. The paper concludes that judicial activism in these countries is a veritable tool in advancing the compliance with the rule of laws on the ground of the Constitution.
Nazionale. Temi Romana, 1999, No. 3.
Barletta, Antonino. In Tema Di Arbitrato Degli Investimenti E Giurisdizione Dello Stato. Europa E Diritto Privato, 2015, No. 3.
Behrens, Peter. Towards Constituzionalization Of International Investment Protection. Archiv Des Völkerrechts, 2007, Vol. 45, No. 2.
Berger, Axel. China’s New Bilateral Investment Treaty Programma: Substance, Rational And Implications For International Investment LawMaking. Paper Prepared For The American Society Of International Law International Economic Law
a principled pluralism that might resist totalization and promote human flourishing. Those prospects are not possible under a totalitarian regime but are available in a society that preserves the forms and institutions of liberty despite the tactical totalization of private law norms. Liberal democracies are quite radically different from totalitarian regimes in this sense (among others). This suggests that security for liberty can be regained in liberal democracies by reinvigorating the cultural practices and institutions of private ordering and private law-making
The imposition of absolute aprioristic standards binding upon a political community—i.e. constitutional rights—coexists in tension with the principle of popular sovereignty. Both the notions of individual rights and popular sovereignty were arguably developed in tandem as modern justifications for the legitimacy of law: see Habermas, supra note 6, at 2-6. This tension sometimes comes to the fore but is, in the main, submerged by rhetorical devices that distinguish between value-charged law-making and value-neutral judicial adjudication. The
legislatures rather than through a convention, The Kentucky Resolutions nowhere mention calling a state convention. saw nullification as something outside the normal law-making process—where a bill originates in the legislature and is then signed by the governor. Sanctuary state California, by contrast, used the normal law-making process to declare its sanctuary status. Ulloa, supra note 180.
Finally, as exemplified by its reliance on judicially-articulated anti-commandeering doctrine, the sanctuary movement has appealed to, rather than rejected, judicial supremacy
law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans , 517 U.S. 620 (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers , holding that lawsmaking same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas , 539 U.S. 558, 575.
Part III seeks to identify ‘dignity and autonomy’ as values
, The Implications of Climate Change Litigation: Litigation for International Environmental Law-Making , in Adjudicating Climate Change: State, National, and International Approaches 357, 357-74 (William C.G. Burns & Hari M. Osofsky eds., 2009) (proposing that transnational litigation is a meaningful strategy to prompt public awareness and private accountability for climate change even if the litigation is ultimately unsuccessful); Scheffer & Kaeb, supra note 91, at 335 (noting that reputational pressures contribute to development of CSR regimes).
of Justice Scalia’s jurisprudence, his claim that consistent application of originalist precepts will constrain federal judges and preserve the law-making role of the political branches. This Essay conducts the evaluation by looking closely at Justice Scalia’s role in the development of Article III standing doctrine. Article III of the U.S. Constitution defines the jurisdiction of the federal courts by specifying the “cases” and “controversies” to which the judicial power of the United States shall “extend.” U.S. Const., art. III, § 2. It does not, however, define