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Case-Law and the Development of International Law
Contributions by International Courts and Tribunals
This book explores recent contributions of the case-law of international courts and tribunals to the development of international law. It begins by looking at how such case-law has contributed to the development of the methodology of international law and to the development of procedural rules. It further examines recent contributions from three major players in the international judicial arena: the International Court of Justice, the International Tribunal for the Law of the Sea and the mechanisms for Investor-State Dispute Settlement. The contributors are well-established academics and practitioners as well as emerging voices in international law, coming from a rich and diverse regional background.
Patrícia Galvão Teles is member of the United Nations International Law Commission and Associate Professor at the Autonomous University of Lisbon. She is also member of the Permanent Court of Arbitration and Vice-President of the Portuguese Society of International Law.
Manuel Almeida Ribeiro is Aggregate Professor at the Technical University of Lisbon and President of the Portuguese Society of International Law.
Manuel Almeida Ribeiro is Aggregate Professor at the Technical University of Lisbon and President of the Portuguese Society of International Law.
Note from the Editors
Notes on Contributors
1 Prologue – One Hundred Years of International Justice and Its Contribution to the Development of International Law
Patrícia Galvão Teles
part 1
The Contribution of International Courts and Tribunals to the Methodology of International Law
Introduction 11
Manuel Almeida Ribeiro
2 Method and Style in International Law, and the International Court of Justice’s Contribution 14
Michael Wood
3 The Authority of the Precedents of the International Court of Justice in the Argumentative Practice in International Law 29
Karem L. Cárdenas Ynfanzón
part 2
The Contribution of International Courts and Tribunals to the Development of Procedural Rules
Introduction 45
Laurence Boisson de Chazournes
4 The “Sparse Axiomatic Statement of Article 41” of the Statute of the International Court of Justice and the Court’s Latest Orders: Phatemate Mathemata 48
Stratis G. Georgilas
5 How International Courts Avoid the Exercise of Their Jurisdiction – the Competence of Competence and “Inverted Judicial Activism” 60
Anna Czaplińska
6 Enhancing the International Court of Justice Procedures in Order to Promote Community Interests The Role of Third-Party Intervention 73
Paula Wojcikiewicz Almeida
part 3
Recent Case-Law of the International Court of Justice (ICJ) and Its Significance for International Law
Introduction 101
Joanna Gomula
7 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) before the ICJ The Obligation to Negotiate under International Law and Chile’s Strategy 104
Claudio Grossman
8 The Law-Making Effect of icj Advisory Opinions A Survey of the Chagos Opinion 127
Giulia Bernabei
9 “Know Thyself” Racial Discrimination before the ICJ – Recent Jurisprudential Developments 142
Ioannis Konstantinidis
10 Reparation for Injuries and Beyond – The Design of the Personality and Powers of International Organisations by International Courts 159
Rita Guerreiro Teixeira
part 4
The Contribution of the International Tribunal for the Law of the Sea (itlos) to the Developement of the Law of the Sea
Introduction
Fernando Loureiro Bastos
11 The Contribution of itlos to the Development of International Law for Protection of the Marine Environment and Conservation of Living Resources
Nilüfer Oral
12 Implications of the M/V “Norstar” Case (Panama v. Italy) and the M/T “San Padre Pio” Case (Switzerland v. Nigeria) for the Further Development of the Law of the Sea
Vasco Becker-Weinberg
13 Limits on the Use of Force at Sea in the Jurisprudence of itlos From M/V Saiga to Ukraine/Russia
Maria Emilynda Jeddahlyn Pia V. Benosa
part 5
Investor-State Dispute Settlement and Its Impact on International Investment Law
Introduction
Catherine Kessedjian
14 The Quest for “Consistency” in International Investment Jurisprudence and the Idea of a Multilateral Investment Court
Somesh Dutta
15 Arbitration Procedure in Bilateral Investment Treaties – Interactions between National, European and International Courts
Łukasz Dawid Dąbrowski
part 6
General Conclusions
16 The Future of the Contribution of International Justice to the Development of International Law – A Plea for (Some) Disorder
Pierre Bodeau-Livinec
Index
Notes on Contributors
1 Prologue – One Hundred Years of International Justice and Its Contribution to the Development of International Law
Patrícia Galvão Teles
part 1
The Contribution of International Courts and Tribunals to the Methodology of International Law
Introduction 11
Manuel Almeida Ribeiro
2 Method and Style in International Law, and the International Court of Justice’s Contribution 14
Michael Wood
3 The Authority of the Precedents of the International Court of Justice in the Argumentative Practice in International Law 29
Karem L. Cárdenas Ynfanzón
part 2
The Contribution of International Courts and Tribunals to the Development of Procedural Rules
Introduction 45
Laurence Boisson de Chazournes
4 The “Sparse Axiomatic Statement of Article 41” of the Statute of the International Court of Justice and the Court’s Latest Orders: Phatemate Mathemata 48
Stratis G. Georgilas
5 How International Courts Avoid the Exercise of Their Jurisdiction – the Competence of Competence and “Inverted Judicial Activism” 60
Anna Czaplińska
6 Enhancing the International Court of Justice Procedures in Order to Promote Community Interests The Role of Third-Party Intervention 73
Paula Wojcikiewicz Almeida
part 3
Recent Case-Law of the International Court of Justice (ICJ) and Its Significance for International Law
Introduction 101
Joanna Gomula
7 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) before the ICJ The Obligation to Negotiate under International Law and Chile’s Strategy 104
Claudio Grossman
8 The Law-Making Effect of icj Advisory Opinions A Survey of the Chagos Opinion 127
Giulia Bernabei
9 “Know Thyself” Racial Discrimination before the ICJ – Recent Jurisprudential Developments 142
Ioannis Konstantinidis
10 Reparation for Injuries and Beyond – The Design of the Personality and Powers of International Organisations by International Courts 159
Rita Guerreiro Teixeira
part 4
The Contribution of the International Tribunal for the Law of the Sea (itlos) to the Developement of the Law of the Sea
Introduction
Fernando Loureiro Bastos
11 The Contribution of itlos to the Development of International Law for Protection of the Marine Environment and Conservation of Living Resources
Nilüfer Oral
12 Implications of the M/V “Norstar” Case (Panama v. Italy) and the M/T “San Padre Pio” Case (Switzerland v. Nigeria) for the Further Development of the Law of the Sea
Vasco Becker-Weinberg
13 Limits on the Use of Force at Sea in the Jurisprudence of itlos From M/V Saiga to Ukraine/Russia
Maria Emilynda Jeddahlyn Pia V. Benosa
part 5
Investor-State Dispute Settlement and Its Impact on International Investment Law
Introduction
Catherine Kessedjian
14 The Quest for “Consistency” in International Investment Jurisprudence and the Idea of a Multilateral Investment Court
Somesh Dutta
15 Arbitration Procedure in Bilateral Investment Treaties – Interactions between National, European and International Courts
Łukasz Dawid Dąbrowski
part 6
General Conclusions
16 The Future of the Contribution of International Justice to the Development of International Law – A Plea for (Some) Disorder
Pierre Bodeau-Livinec
Index
All interested in the case-law of international courts and tribunals and International Law development.