Publications

Rachovitsa: On New “Judicial Animals”: The Curious Case of an African Court with Material Jurisdiction of a Global Scope

The paper, to be published in the Human Rights Law Review, aims to think anew about the jurisdiction ratione materiae of the African Court on Human and Peoples’ Rights (‘Court’). The Court, based in Arusha, enjoys a distinctive contentious jurisdiction which extends to the interpretation and application of any other relevant human rights instrument ratified by the States concerned. The Court’s striking features set it apart from human rights bodies and most international courts. The Court’s jurisdiction has been received with scepticism and fear arguing that, if the Court extends its jurisdiction over treaties other than the African Charter on Human and Peoples’ Rights, this will lead to jurisprudential chaos and will undermine the formation of the African corpus juris. The article discusses the case law of the Court since 2013, when the Court started functioning, and it argues that these concerns are over-emphasised. The analysis underlines the shifting authority of specialised and/or regional courts; the need not to overstress but to appreciate positively instances of divergence; and the consideration of new conceptual and geographical topoi, in which international law is to be found and produced. You will find a copy here.

Rachovitsa: Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

In this article in the Leiden Journal of International Law, Assistant Professor Adamantia Rachovitsa (Qatar University) discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law.

The article argues that the Court’s case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court’s approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

Read the article here.

De Brabandere: Investment Treaty Arbitration as Public International Law

In this monograph published with Cambridge University Press (2014), Eric De Brabandere (Leiden University) examines the procedural implications of conceiving of investment treaty arbitration as a part of public international law, with regard to issues such as the principles of confidentiality and privacy, and remedies.

This monograph proposes a new perspective on the procedural aspects and implications of investment treaty arbitration. It also provides a comprehensive overview of how public international law principles influence procedure in investment treaty arbitration and a theoretical and practical overview of the public international law foundation of investment treaty arbitration.

Read more about the book here.

Forlati: The International Court of Justice: An Arbitral Tribunal or a Judicial Body

In this book published with Springer (2014), Serena Forlati (University of Ferrara) analyses if and to what extent the specific features of the ICJ have influenced the approach of the ICJ (and of the PCIJ before it) to its own judicial function and have led it to depart from the principles established in international arbitration.

A careful analysis of the practice of the Permanent Court of International Justice and of the International Court of Justice and a comparasion between the role of the ICJ with the role of international arbitral tribunals are presented in Forlati’s book. This book is a contribution to the understanding of the international judicial function.

Read more about the book here.

Hernandez: The International Court of Justice and the Judicial Function

In this book published with Oxford University Press (2014), Gleider I Hernandez (Durham Law School) analyses how the ICJ understands its role within the ‘international judicial function’.

This book evaluates the concept of the function of law through the prism of the International Court of Justice. It goes beyond a conventional analysis of the ICJ’s case law and applicable law, to examine the compromise between supranational order and state sovereignty that lies at the center of its institutional design.

Read more about the book here.

The Rules, Practice, and Jurisprudence of International Courts and Tribunals

This book (Brill / Nijhoff, 2012), edited by Chiara Giorgetti (Richmond School of Law), examines existing international dispute resolution institutions to assess both procedural rules and essential case-law.

In the light of the growing number and complexity of international courts and tribunals, the detailed study of their practice as presented in this book becomes highly relevant for both academics and practitioners in international law.

Read more about the book here.

Weill: The Role of National Courts in Applying International Humanitarian Law

In this book published with Oxford University Press (2014), Sharon Weill (Geneva Academy of International Humanitarian and Human Rights Law) evaluates how domestic courts have interpreted and applied international humanitarian law and shows how their interpretations may differ.

This book investigates the rulings of five specific domestic courts (UK, USA, Canada, Italy, and Israel) offering a critical analysis of the courts’ rulings. In her analysis, Weill shows that the functional role of the national courts is a combination of contradictions and mixed attitudes, and that national courts are in the process of defining their own role as enforcing organs of international humanitarian law.

Read more about the book here.

Foster: Science and the Precautionary Principle in International Courts and Tribunals

In this publication (Cambridge: Cambridge University Press, 2013), Caroline E. Foster (Auckland University) examines how the precautionary principle can be accommodated within the rules about proof and evidence and advises on the boundary emerging between the roles of experts and tribunals.

This book aims at advancing international adjudicatory practice by contextualising developments in the taking of expert evidence and analysing the justification of and potential techniques for a precautionary reversal of the burden of proof, as well as methods for dealing with important scientific discoveries subsequent to judgements and awards. It is considered as an important contribution to the debate on scientific fact-finding by international courts and tribunals.

Read more about the book here.

Wellens: Negotiations in the Case Law of the International Court of Justice. A Functional Analysis

Karel Wellens, Emerius Professor of International Law at Radboud University Nijmegen (The Netherlands), published a book with Ashgate, 2014 , 350 pages, ISBN 978-1-4094-045-4 (hardback) , ISBN 978-1-4094-1046-1(ebook).

This book examines the multifunctional role negotiations play in the jurisprudence of the International Court of Justice. Prior negotiations may be necessary to bring to the surface and clarify the legal aspects of a dispute before its submission to the ICJ. Negotiations may play a potential and parallel role during the course of the proceedings; results of negotiations may find their way into the judicial reasoning and may even form part of the basis of the judicial settlement. The Court’s judgment may require further negotiations for its implementation. A failure of this process may bring the parties back before the Court.

This volume presents a detailed and critical examination of the case law of the ICJ through the prism of the functional interaction between negotiation and judicial settlement of disputes. In cases where legal interests of third States are involved this functional interaction becomes even more complex. The focus is not on the merits of each individual case, but on the Court’s contribution and clarification of this functional interplay.

The systematic analysis of the Court’s jurisprudence makes this book essential reading for those involved with and studying international law and justice.

Read more about the book here.

Sarvarian: Professional Ethics at the International Bar

Arman Sarvarian (University of Surrey) examines the question of how to articulate common ethical standards for counsel appearing before international courts and tribunals. Read more about his new book (Oxford University Press, 2013) here.

Over the past twenty years, the volume of international litigation and arbitration has increased exponentially. As the number of new international courts and tribunals has proliferated, the diversity and volume of advocates appearing before the international courts has also increased. With this increase, the ethical standards that apply to counsel have become a growing field of interest to practitioners of public international law.

Problems threatening the integrity of the international judicial process and concerns about divergent ethical standards amongst counsel have multiplied in the international judicial system, prompting early attempts by senior members of the ‘international bar’ to articulate common ethical standards.

Shany: Assessing the Effectiveness of International Courts

Yuval Shany (Hebrew University) assesses how effective key international Courts have been in Meeting their goals. His new book is published by Oxford University Press in 2014.

Are international courts effective tools for international governance?
Do they fulfill the expectations that led to their creation and empowerment?
Why do some courts appear to be more effective than others, and do so such appearances reflect reality?
Could their results have been produced by other mechanisms?

This book evaluates the effectiveness of international courts and tribunals by comparing their stated goals to the actual outcomes they achieve. Using a theoretical model borrowed from social science, the book assesses their effectiveness by analysing key empirical data.

Oxford Handbook of International Adjudication

Edited by Cesare Romano, Karen Alter, and Yuval Shany (Oxford: Oxford University Press, 2014).

This Oxford Handbook provides an authoritative, comprehensive study into the development, proliferation, and work of international adjudicative bodies.

The book:

Provides an innovative assessment of the different types of international adjudicators and the theoretical approaches underpinning their work
Investigates key controversies surrounding international courts and tribunals, such as the effectiveness of their judges, the rights of third parties, their financing, and the roles of judges and prosecutors
Includes contributions from over forty leading legal scholars, political scientists, and practitioners to present a uniquely interdisciplinary perspective

Constituting Europe: The European Court of Human Rights in a National, European and Global Context

This book is part of the Cambridge University Press series “Studies on Human Rights Conventions”. The editors are Andreas Føllesdal (PluriCourts, University of Oslo), Birgit Peters (University of Münster) and Geir Ulfstein (PluriCourts, University of Oslo).

At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of states in UN-lead military operations, the Court faces important challenges at the national, European and international levels.

In light of recent reform discussions, this volume addresses the multi-level relations of the Court by drawing on existing debates, pointing to current deficits and highlighting the need for further improvements.

Read more about the book here.