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

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.

No description available.

Thesis (Ph. D.)--Florida State University, 2006. / Advisor: Dale L. Smith, Florida State University, College of Social Sciences, Dept. of Political Science. Title and description from dissertation home page (viewed Sept. 13, 2006). Document formatted into pages; contains ix, 242 pages. Includes bibliographical references.

LL.M. (International Law) / This thesis is based on the jurisprudence of the International Court of Justice viz a viz the South African law and practices as it relates to diplomatic protection of nationals or corporate entities who encounter problem with the law in a foreign country. How the concept of diplomatic protection has assisted individuals and corporate entities who wish to go to a foreign country for whatever reason to feel free and relaxed knowing that their lives and property are protected. The expose examines the rights of individuals to diplomatic protection in international law in comparison with the rights of nationals to request for diplomatic protection in South Africa. The questions posed are; what is the liability of the state to its nationals, what level of responsibility is to be exhibited by the state when providing diplomatic protection and do such nationals have a right to demand to be protected in international law and or municipal law. Chapter one will examine the growth and historical development of diplomatic protection and the position as it is today. Chapter two will deal with nationality issues, this is because to determine who will be the beneficiary of diplomatic protection nationality must first be determined. The issues to be discussed in this chapter are: acquisition of nationality, double or multiple nationalities, continuity of nationality, loss of nationality, nationality of a Corporation and its shareholders, stateless persons and refugees, and the right to diplomatic protection. In answering the question of state responsibility, chapter three will examine the local remedy rules. This is because local remedies will have to be exhausted before the state can intervene. Chapter four will examine the treatment of alien which include expulsion of alien, expropriation of foreign property, and consular protection. Various attempts have been made to define Diplomatic protection, but there has not been a generally accepted definition. Some of these definitions are highlighted below. A description is also provided below to help with the understanding and scope of diplomatic protection.

On December 16, 1963, the General Assembly of the United Nations adopted Resolution 1967 (XVIII) recording its belief that provision for impartial fact finding within the framework of international organizations, and in bilateral and multilateral conventions, could make an important contribution to the peaceful settlement of disputes, and to their prevention. The Resolution noted a considerable body of practice in the use of fact finding methods in international relations, which is available to be studied "for the progressive development of such methods" (6th perambular paragraph). In the light of this Resolution, the object of this study was to ascertain the nature and the scope of the fact finding powers possessed by the principal judicial organ of the community of nations, the World Court and their applicability in the various types of proceedings which may be instituted before it. As a background the major problems inherent in, and the nature and function of, the law of evidence in international judicial proceedings are sketched. An attempt is also made to determine the respective rights and duties of the litigants and the World Court in the matter of the adduction of evidence. The provisions of the Statute and Rules of the World Court which expressly confer upon it fact finding powers are then examined. A broad competence is seen to be granted the Court to request the production of evidence, and to undertake investigations and enquiries of various kinds into the facts of the issues submitted to it. The only condition precedent to the exercise of these powers being that the litigant states must have agreed to submit their dispute to the Court for adjudication. Notwithstanding a paucity of authority, it is also found that the world Court also possesses certain implied fact finding powers stemming not from the instruments of its creation, but from its inherent nature as a judicial tribunal. This implied competence to undertake researches, of its own motion, into the facts of an issue submitted to it supplements the Court's express competence, although a duplication of the power to appoint independent experts is evident. It is then ascertained whether the World Court can have recourse to all the fact finding powers conferred upon it in the two categories of proceedings, contentious and advisory proceedings, which may be instituted before it. Some limitations on the Court's powers are found to exist in the case of advisory proceedings, these limitations deriving from the nature of the proceedings. With respect to contentious proceedings no limitations were found. From the preceding examination of the fact finding powers of the World Court it was concluded that it had the potential to discover the absolute truth of any issue submitted to it for decision, with the co-operation of the parties. While some amendments to the Statute and Rules of the Court were suggested, it was felt that any major revisions of the Court's powers would have no substantial effect until the jurisdiction of the Court became compulsory. / Law, Peter A. Allard School of / Graduate

<p> </p><p>Upon a closer examination of the role and performance of the International Court of Justice, we find that it does primarily fulfil its role and obligation as far as the UN charter and the Courts stature are concerned. It is upon the application of Kjell Goldmann’s <em>Internationalists Programme </em>that we find ourselves wanting more from the Court.</p><p>If we assume the development of international institutions, exchange, communication and the like to be desirable and necessary for the continued development of international peace and security, the ICJ can be shown to have had historical opportunities to affect the development to such an effect, but lacks the formal means to do so.</p><p>With the subscription to the internationalists programme, we find that there are plenty of potential improvements that could reasonably be made. These are primarily about the official influence of the Court, with regards to cases relevant to it and its jurisdiction, which is severely crippled by current regulatory framework. This is a condition shared with plenty of other international courts in their various forms.</p><p>Essentially, the current state of the ICJ lacks the desirable attributes and possibilities to influence the development of international law to any meaningful extent. If we indeed were to look for an international court with the means to build international legal institutions and seek to further enforce international peace and security, the ICJ is not what we are looking for.</p><p> </p>

In classical international law, States alone were the makers and subjects of the law. Times have changed. Contemporary international law admits, not only States as its subjects but also individuals and international organisations; it controls not just the needs of States but also the needs of individuals as it continues to venture into areas which, in the classical era, were exclusively reserved to domestic law. The fact that international law now applies to entities other than States is no longer a subject of controversy both in theory and practice. On the contrary, the question relating to whether international law could originate from a source other than through the consent of States in the positivist sense of the law has remained a question of controversy. The question has been made more complex by the multiplicity of international institutions created by States and vested with authority to perform the functions entrusted to them under international law. The functions they perform influence the behaviours and expectations of both States and individuals; but the powers they exercise belong to the States which delegated the powers. Since the powers are delegated by States, it should follow that the powers be confined by the very fact of delegation to the functions for which the powers had been granted. Such powers cannot be used for any other purpose, perhaps. With this in mind, the question sought to be answered in this work is whether the powers granted to International Court of Justice to “decide disputes” – article 38(1) of the Statute of the Court) – implicates the power of judicial lawmaking. In other words, whether rules and principles arising from the decisions of the Court can be properly referred to as rules and principles of international law. The question becomes quite intriguing when placed within the context of article 38(1)(d) and article 59 of the Statute of the Court on the one hand, and the practice of the Court and of the States appearing before it on the other hand. Articles 38(1)(d) provides: “subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” By article 59: “The decision of the Court has no binding force except between the parties and in respect of that particular case”. Notwithstanding the language of the above provisions, it is shown in this work that like judges in municipal law, judges in the ICJ lay down rules and principles having legal implications for the decisions in subsequent cases as well as for the conduct of States, in general, regarding areas within the degrees of the settled case-law of the Court. It is accordingly argued that to the extent that rules and principles in the decisions of the Court are relevant as rules and principles of international law (in subsequent decisions of the Court) to the determination of international law rights and obligations of States, judicial decisions in article 38(1)(d) are a source of international law. This is notwithstanding the unhelpful language of paragraph (d) and the influence of article 59. Concerning article 59, the writer argues that the article has no bearing on the authority of judicial decisions in article 38(1)(d); its real function being to protect the legal rights and interests of States from a decision given in a case to which they were not parties.

This thesis focuses on the legal aspects of Kosovo's unilateral declaration of independence. At first I describe the historical and political development in this region. Further follows the explanation of the instruments of international law, such as the definition of a state, the unilateral acts of states and the role of the International Court of Justice. As conclusion I descirbe the role of this instruments on the example of Kosovo and evaluate the impact of the Kosovo indendence on the legal sphere.