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Thesis (doctoral)--Universität Köln.

Purpose and Limits of the Present Study. International litigation is primarily concerned with finding a solution for the conflicting and contradictory claims of the disputant states who have different notions of justice for their acts and omissions at the international level. This problem becomes more acute when one party asserts its right against the other, and, in the absence of any treaty or convention, tries to establish and prove the existence of such right, on the basis of long usage, practice or custom, recognized as such by the civilized nations of the international community. The International Court of Justice, like its predecessor, the Permanent Court of International Justice, had to face those problems in a number of cases brought before it, and it succeeded, to a great extent, in solving those complicated problems, and, by crystallizing those rudimentary rules of customary law, which in the past had been a source of confusion for the international jurists, has made important contributions to the development of international law. It is the purpose of the present study to analyze the jurisprudence of the Court and, to find those principles of customary international law that the Court has applied for arriving at a particular decision. The approach is basically expository, and is confined to scrutinize that volume of authority, which the Court has produced on "international custom, as evidence of a general practice accepted as law."¹ Within this limited range it was thought desirable not to ignore the fundamental questions relating to state sovereignty and "domestic jurisdiction", which present-' various problems in international adjudication. Since the object of the present thesis is to extract, assemble, and evaluate the nature of those principles which the Court enunciated in its Judgments, it was found necessary to draw upon the individual opinions of the dissenting Judges, or, the separate opinions of those who concurred in the operative part of the Judgment, but, gave different reasons for arriving at the same conclusion, because it has been said that: "A dissent in a court of last resort is an appeal to the broadening spirit of the law, to the intelligence of a future day where a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”¹ 1 Art. 38 (1) (b) of the Statute of the Court. 1 Charles Evans Hughes, U.S. Supreme Court 68 (1928) (quoted by Runz, "The Nottebohm Judgment (second phase)," 514 AJIL (I960), p.. 539; see however, Lauterpacht, The Development of International Law by the International Court of Justice, Stevens, London, 1958, pp. 66-7). / Law, Peter A. Allard School of / Graduate

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The prospect of a justification defence in cases of direct sex discrimination is universally criticised by academic commentators on the ground that it would subvert the goal of equality that underlies sex discrimination and equal treatment legislation. At the outset the thesis examines the differences between the sexes, how these differences can be used to explain the distinction between direct and indirect sex discrimination and considers various concepts of equality. Building on various elements of the existing justification defences for indirect sex discrimination and disability discrimination, this thesis constructs a model justification defence. The impact on equality of such a defence is assessed by reference to the main existing legislative exceptions for direct sex discrimination and various judicial exceptions that have been created, in the main, by the European Court of Justice. Further, the thesis considers whether the blanket prohibition against the use of sex stereotypes is warranted and the extent to which they might be permitted under the model defence. The conclusions reached are that criticism of the potential defence is overstated. Rather than undermining the goal of sex equality, such a defence could in fact enhance the degree of legal protection as long as the criteria of the defence are stringently drawn. Indeed, in relation to some areas of direct sex discrimination, for example pregnancy and maternity, the introduction of such a defence could enhance the degree of equality. Moreover, the introduction of such a defence could introduce a greater degree of openness and clarity into this complex area of law.

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The thesis adopts a doctrinal approach to consider how a subsidiarity and proportionality review by the CJEU could be applied to shared competences, and the criteria that the CJEU should take into account in balancing competing interests when determining the residency rights of EU citizens. It will identify limits to the competences of the EU through subsidiarity analysis, including how this should constrain the reasoning of the CJEU, but this has a consequence of better legitimising such genuinely European standards that do have a clear legal basis. Adhering to the rule of law is an important issue for the CJEU to demonstrate its respect for as a core value commonly associated with democracy and with the validity of law itself. A subsidiarity review undertaken by the CJEU involving the CJEU checking whether the Union has competence to act (conferral) and in cases concerning areas of shared competence would also serve to legitimise the CJEU’s ruling to the Member States and address the problem of ultra vires EU action lacking legitimacy in the perspective of the Member States eyes. Adopting a normative approach it considers how a subsidiarity and proportionality review could be anchored in EU law to address competence issues when the CJEU is striking a balance between fundamental principles of EU law, the Charter of Fundamental Rights and the residency rights of migrant EU citizens who are economically inactive. As subsidiarity in these types of cases relates to the cross border requirement, the CJEU should be explicit about departing from the purely internal rule as well as explaining the substance of rights of EU citizens. The proportionality element of the review relates to the actual consideration and weighing up by the CJEU of the competing interests identified in this context. This requires the CJEU to identify explicitly in its reasoning any competing interests that have been weighed up as well as stating any other particular factors involved in the balancing and the weight accorded to those factors. Although such an approach would not necessarily result in a change in the outcome of the case, it would help to improve the quality of the reasoning of the CJEU and consequently enhance the legitimacy of the CJEU’s ruling.

International legal scholars and lawyers have dedicated much thought and energy to enhancing their understanding of how judges at the International Court of Justice (ICJ) come to decide cases the way they do. Although these studies of judicial behavior at the ICJ have provided insight into international judicial decision-making, still little is known about how international judges reach decisions. This project was an attempt to improve upon the explanations, given thus far, for the decisions made by ICJ judges in the cases brought before the Court. In this study I tried to ascertain whether and to what extent the legal tradition under which an ICJ justice has been educated and trained to practice law determines how she or he finds and applies the law in an international dispute. I also sought to answer the following question: Do the civil law and common law traditions differ in enough ways or to such a great extent as to render them distinct from one another? I began by examining the world's three principal legal traditions, civil law, common law, and socialist law, according to three criteria common to macrocomparative surveys on legal tradition: history, the conception of law, and the institutional elements of a legal system. The decisions of three ICJ cases were analyzed with a view to determining whether the justices voted along lines of legal tradition and/or discovered and applied the law in a manner typical of the legal tradition under which they were educated. From the analysis I concluded that legal tradition was not a significant variable in the judicial decision-making at the ICJ. The examination of the cases also indicated that the common law and civil law traditions appear to converging in so far as they have adopted the methods of the other tradition yet still diverging as they continue to reveal traditional differences.

Inaug.-Diss.--Frankfurt am Main. / Vita. Bibliography: p. 7-9.