Recent developments at the international level reveal that there is an increasing number of political resistances against international courts and tribunals as part of wide criticism of the basic ...principles of international law such as the rule of law, global governance, multilateralism and democratic liberalism. In this respect, the future and impact of the judicialisation of international law, which refers to the uneven increase in the jurisdiction and judicial activity of international courts, are questioned. Similarly, whether dejudicialisation which expresses the removal of the international courts’ power as a reverse movement, constitutes a new trend and will continue increasingly in the future has become relevant. There are certain assertions to defend the existence of international courts and the continuation of judicialisation –albeit at a slower pace– in the future despite the increasing incidence of dejudicialisation. Examples of extraordinary resistance which can trigger the dejudicialisation process are still exceptional and cannot completely eliminate judicialisation in current conditions. This argument has been reached by examining three recent backlash examples, including the withdrawals from the International Criminal Court (ICC), the paralysis of the World Trade Organization (WTO) Appellate Body, and the limitation of the jurisdiction of the South African Development Community Tribunal(SADC) Tribunal. Clearly, the displacement of international courts, which have become inseparable actors of international law, cannot be achieved by a few examples of extraordinary resistance, both in the present and in the near future.
Abstract
This article explores and articulates contemporary discourse, reflective of the most recent practice in the domain of relationship between artificial intelligence (AI) and discrete fields of ...international law, primarily concerning the use of such machinery to prevent and punish crime. It looks into the hitherto unforeseen context of the use of satellite imagery and other AI-generated data as evidence before international courts and tribunals in order to document and prosecute the commission of internationally prohibited crimes. Taking as a lead example the curious case of Al-Werfalli before International Criminal Court (ICC), while examining other relevant cases from the practice of the ICC, International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Court of Justice (ICJ) in some exhaustive fashion, the underlying philosophy is to explore the benefits and limits of the AI, with a view of ascertaining the distinct role and place for courts in shaping stable standards in the face of challenges posed by modern technology. The larger objective is indeed three-fold: to ascertain the role and probative value of aerially derived evidence, to explore some of the challenges associated with the use of such evidence, and to understand the role of courts in determining the applicable standards and developing the law. The existing judicial praxis reveals the acceptance of the satellite-based or aerially derived evidence in judicial proceedings and sets forth the requisite operational criteria, which should serve both as guidance and an inspiration for exploring their further development and specification.
Although customary international law (CIL) has been central to international law from its inception, it is often misunderstood. This edited volume remedies that problem by tracing the history of CIL ...and provides an in-depth study of its theory, practice, and interpretation. Its chapters tackle the big questions which surround this source of international law such as: what are the rules that regulate the functioning of CIL as a source of international law? Can CIL be interpreted? Where do lines between identification, interpretation, application, and modification of a rule of CIL lie? Using recent developments, this volume revisits old debates and resolves them by proffering new and innovative solutions. With detailed examples from international and national courts, it places CIL in a range of settings to explain, explore and reflect upon this developing and highly significant field. This title is also available as Open Access on Cambridge Core.
This article considers the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies - the European Court of Human ...Rights, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the African Court on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights, and the Human Rights Committee. In general, all of the bodies surveyed have adopted a flexible approach to evidence law questions. While a flexible approach has merits, it also has the potential to lead to inconsistencies, as well as to situations in which rights bodies fail to take fully into account the challenges claimants face in terms of accessing justice. In this context, this article argues for the adoption of a more consistent approach, based upon but further elaborated from the standards recognised by the bodies surveyed. In particular, the article highlights two situations in which the burden of proof should be reversed. First, the burden should be reversed in cases where there is differential access to information. Second, the burden should be reversed where a prima facie case can be linked to evidence of a systemic pattern of violations.
The aim of this article is to clarify the meaning and scope of Article 300 (good faith and abuse of rights) of the United Nations Convention on the Law of the Sea (UNCLOS). Uncertainty about the ...meaning of Article 300 raises doubts about its raison d'être. It is insufficient to rely on the means of interpretation of treaties under Articles 31 and 32 of the Vienna Convention on the Law of Treaties and customary international law to understand Article 300 of UNCLOS. Therefore, this article analyzes relevant international cases brought before international courts and tribunals (ICTs) established under Part XV, Section 2 of UNCLOS to scrutinize the interpretation and application of Article 300. The first task of this article is to identify how ICTs have understood the structure of this provision and its character. After this general observation, this article answers the following questions: (1) Which state bears the burden of proof to invoke Article 300? (2) What conditions/steps fulfill Article 300's invocation? (3) In which circumstances do courts uphold or reject allegations that Article 300 has been breached? This article's findings allow for an appraisal of international judges' interpretations of the meaning and purpose of Article 300.
This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. ...Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.
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