Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court

206 Pages·1991·8.593 MB·English

by  Edward McWhinney Q.C. (auth.)

JUDICIAL SEITLEMENT OF INTERNATIONAL DISPUTES
By the Same Author
I. Judicial Review in the English-Speaking World, (Ist ed., 1956; 4th ed., 1969).
2. Föderalismus und Bundesverfassungsrecht, (1962).
3. Constitutionalism in Germany and the Federal Constitutional Court, (1962).
4. Comparative Federalism. States' Rights and National Power, (Ist ed., 1962; 2nd ed.,
1965).
5. "Peaceful Coexistence" and Soviet-Western International Law (1964).
6. Federal Constitution-Making foraMulti-National World, (1966).
7. International Law and World Revolution, (1967).
8. Conflit ideologique et Ordre public mondial, (1910).
9. Parliamentary Privilege and the Publication of Parliamentary Debates, (1974).
10. The Illegal Diversion of Aircraft and International Law, (1975).
11. The International Law of Detente. Arms Control, European Security, and East-West
Cooperation, (1978).
12. The World Court and the Contemporary International Law-Making Process, (1979).
13. Quebec and the Constitution. 1960-1978, (1979).
14. Conflict and Compromise. International Law and World Order in a Revolutionary Age,
(1981).
15. Constitution-Making. Principles, Process, Practice, (1981).
16. Canada and the Constitution. 1979-1982. Patriation and the Charter of Rights, (1982).
17. (a) United Nations Law-Making. Cultural and ldeological Relativism and International
Law Making for an Era ofTransition, (1984).
(b) French Language Edition: Les Nations-Unies et Ia Formation du Droit, (1986).
18. Supreme Courtsand Judicial Law-Making. Constitutional Tribunalsand Constitutional
Review, (1986).
19. Aerial Piracy and International Terrorism (1987).
20. The International Court of Justice and the Western Tradition of International Law (The
Paul Martin Lectures) (1987).
21. Nuclear Weapons and Contemporary International Law, (1989) (with President
Nagendra Singh).
JUDICIAL SETTLEMENT OF
INTERNATIONAL DISPUTES
Jurisdiction, Justiciability and Judicial Law-Making
on the Contemporary International Court
by
EDWARD McWHINNEY, Q.C.
Professor of International Law and Relations,
Sirnon Fraser University, Vancouver
-Membre de l' Institut de Droit International
-Membre-assocü! de l'Academie Internationale de Droit Compare
-Member of the Permanent Court ofA rbitration
Springer-Science+Business Media, B.V.
Library of Congress Cataloging-in-Publication Data
McWhinney, Edward.
Judicial Settlement of international disputes : jurisdiction,
JUSticiability, and JUdicial law-making on the contemporary
International court I by Edward McWh1nney.
p. cm.
Inc 1 udes i n:lex.
1. International Court of Justice. 2. Jurisdiction <International
lawl I. Title.
JX1971.6.M4 1991
341.5 · 52--dc20 90-47843
ISBN 978-94-017-6716-3 ISBN 978-94-017-6796-5 (eBook)
DOI 10.1007/978-94-017-6796-5
Printed on acid-free paper
All Rights Reserved
© 1991 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1991.
Softcover reprint of the bardeover 1st edition 1991
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
To Manfred Lachs
Table of Contents
Acknowledgements xi
Foreword: Historical Contradictions in Contemporary State Attitudes
to the International Court xiii
Chapter I. Contemporary Conceptions of the Role of International
Judicial Settlement 1
1. Changing national positions on third party, (and especially
Court-based) disputes-settlement 1
2. Ethnocentricity of "classical" internationallaw institutions and
processes like judicial settlement 5
3. The influence of evolving national constitutional institutions
and processes upon international judicial settlement 8
Chapter TI. The Contemporary International Judicial Process. Law and
Logic, and the "Law"t'Politics" Dichotomy 16
1. J udicial Positivism and the Iimits of legallogic 16
2. Competing theories of judicial interpretation. The judicial
activism/judicial self-restraint continuum 23
3. Preliminary and Merits jurisdiction 27
4. Advisory Opinion jurisdiction 29
5. Preliminary and Merits jurisdiction revisited 33
6. The "law"t'politics" dichotomy, and the "political questions"
exception to jurisdiction 37
7. The Rules of Procedure, and the creative role of Court practice
in their development 46
vii
viii TABLE OF CONTENTS
Chapter III. The Jurisdiction of the Full Court of the International
Court, and the Special Chambers Gloss to Jurisdiction 56
1. Compulsory jurisdiction under Article 36(2) of the Court
Statute 56
2. On "regionalism",and on an alleged "regional" bias in the
Court's decisions 62
3. The contemporary, Special Chambers gloss to Courtjurisdic-
tion 73
Chapter IV. The Contemporary International Court as Independent,
and as Representative Tribunal 91
1. Judicial independence, and judicial "interest" 91
2. Judicial representation: the nomination system for the Interna-
tional Court 95
3. Elections to the International Court: changing trends in
"regional" representation on the Court 101
4. "Regional" idiosyncrasies or gaps in the representative charac-
ter of the International Court today 106
5. On "politics" in the Court elections, and current, alleged
"regional" biases in Court representation 114
Chapter V. A Contemporary, Operational Approach to Court J urisdic-
tion and Justiciabi1ity 122
1. The new popularity of the International Court 122
2. The "internationalising" ofthe institution of judicial settlement 123
3. The "internationalising" of the International Court and its
judges 129
4. The International Court as sui generis institution 133
5. The Court and "political questions" 134
6. Operational indices as to justiciability in contemporary interna-
tionallaw problem-situations 137
a. The issue oftiming 137
b. The issue of fact-finding 139
c. "Judge and Company": the issue of a constitutional
separation-of-powers 142
7. The new constitutionallegitimacy of the International Court
and of judiciallaw-making 147
Conclusion: New Agenda, and New Client-States for the International
Court 156
TABLE OF CONTENTS ix
Table ofPrincipal Cases 160
Appendices: Documents 162
A. Covenant ofthe League ofNations. (1920), 162
(Articles 12-15, Article 19)
B. Charter of the United Nations. (1945), 165
(Chapter XIV. Articles 92-96)
C. Statute ofthe International Court of Justice 167
D. U.N. General Assembly Resolution 44/23, 9 January 1990 184
("United Nations Decade of International Law")
Index 186
Acknowledgements
The present study derives from lectures given by the author to the Sixtieth
Session of The Hague Academy of International Law, in the Summer of
1990, under the title "Judicial Settlement of Disputes: Jurisdiction and
Justiciability",and published in the Recueil des Cours de l'Academie de Ia
Haye, 1990.
The intense public interest and discussion of the rote of the contemporary
International Court of Justice, heightened by recent attacks by the U.S.
Administration on the Court and its judges in the wake of the Court's
Nicaragua rulings, 1984-1986, have prompted the present publication in
separate, monograph form, in a somewhat expanded version of the original.
It is a particular pleasure for the author to be able to renew and reinforce,
in this way, long-standing ties to The Hague Academy - to its Curatorium,
its distinguished sessional Faculty, and its students drawn, then as now,
from all parts of the World and all legal systems, - first established, as
student, in an earlier time period, 1951, that is sometimes, in retrospect,
qualified as the "golden era",when great jurists of the stamp of Gidel,
Scelle, Andrassy, Feinberg, Hsu Mo, and Wehberg were teaching at the
Academy. These personal ties were renewed, as teacher, at the Fiftieth
Anniversary session of the Academy, in 1973, when the author gave a
course of lectures on the theme of "The lllegal Diversion of Aircraft and
International Law",which were published in the Recueil des Cours for 1973
and later re-published, in somewhat expanded form, in separate, monograph
form, under that same title, in 1975.
The author wishes to acknowledge the partial support accorded, in the
research and preparation of the succeeding study, by the Social Seiences
and Humanities Research Council of Canada. Barbara Wright of the Sirnon
Fraser University in V ancouver typed all of the manuscript and otherwise
assisted in its organisation and preparation for publication.
Edward Mc Whinney
The Hague, Netherlands
Vancouver, Canada
XI