The International Court of Justice and some contemporary problems: Essays on international law

375 Pages·1983·8.467 MB·English

by  Taslim O. Elias (auth.)

THE INTERNATIONAL COURT OF JUSTICE
AND SOME CONTEMPORARY PROBLEMS
LEGAL ASPECTS OF
INTERNATIONAL ORGANIZATION
Already published in this series:
S. Rosenne, Procedure in the International Court. A commentary on the
1978 rules of the International Court of Justice. 1983.
ISBN 90 247 3045 7
TASLIM 0. ELIAS
Judge and President of the
International Court ofJ ustice
The International Court of Justice
and some contemporary problems
Essays on international law
•
1983
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
Library or Congress Cataloging in Publication Data
Elias, T. o. (Taslim Olawale)
The International Court ot Justice and some contem-
porary problema.
(Legal aspects ot international organization)
Bibliography
l.. In11ernational. Court ot Juatice. 2. International
law. 3. International law-Af'rica-Cases. I. Title.
II. Series.
JXl971.6,E56 1983 341.5152 82-22363
ISBN 978-90-247-3044-5 ISBN 978-94-017-4865-0 (eBook)
DOI 10.1007/978-94-017-4865-0
© /983 by Springer Science+Business Media Dordrecht
Originally published by Martinus Nijhotf Publishers, The Hague in 1983
Softcover reprint oft he hardcover 1st edition 1983
All rights reserved. No part of this
publication may be reproduced, stored in a retrieval system, or transmitted in any form or
by any means, mechanical, photocopying, recording, or otherwise, without the prior written
permission of the publisher,
Springer-Science+Business Media, B. V.
Table of contents
Acknowledgments IX
Introduction 1
PART ONE: ASPECTS OF THE JUDICIAL PROCESS
1. Methodological problems faced by the International
Court of Justice in the application of international law 13
(a) Aspects of internal judicial practice of the Court 13
(b) Some problems of admissibility 17
(c) Certain aspects of jurisdictional problems 20
(d) Certain other incidental questions 23
(e) A preliminary issue before an advisory opinion is
rendered 26
2. The International Court of Justice and the non-appearing
respondent 33
(a) Requirements of Article 53 of the Court's Statute 35
(b) Application of Article 53 in general 39
(c) Certain basic issues and the recent phase 41
3. The International Court of Justice and the indication
of provisional measures of protection 67
(a) Judges ad hoc and provisional measures 72
(b) The necessity to hear both sides 73
(c) Application for provisional measures and the issue
of jurisdiction 7 4
(d) The significance of the word "indicate" 78
(e) Basis for the Court's indication of interim measures 80
v
4. The limits of the right of intervention in a case before
the International Court ofJustice 84
(a) Introduction 84
(b) Argument that Article 62 should not be read in
isolation 89
(c) Is there a contradiction between Article 62 of the
Statute and Rule 81(2)(c)? 92
(d) Is a would-be intervener a party in the case? 94
(e) The last phase 96
5. The international Court of Justice and the nuclear tests
cases 100
(a) Introduction 100
(b) The issue of unilateral declarations 105
(c) The question of mootness of the dispute 114
(d) Implications of the decisions in the case 116
6. The doctrine of inter-temporal law 119
(a) Emergence of the doctrine 119
(b) Its restatement and analysis 120
(c) The latest phase 133
(d) Reappraisal and delimitation of scope 141
7. New perspectives and conceptions in contemporary
public international law 148
(a) Human Rights 149
(b) Diplomatic Law 151
(c) Law of the Sea 152
(d) Wars of National Liberation and Humanitariaq L~w 156
(e) Legal aspects of the New International Economic
Order 160
(f) Conclusion 163
PART TWO: INTERNATIONAL LAW AND DEVELOPMENT
8. Sovereign immunity and commercial transactions 167
VI
9. The work of international organizations in the economic
and social fields 180
(a) Introduction 180
(b) The U.N. Charter on economic and social matters 182
(c) The ECOSOC functional commissions 185
(d) The ECOSOC regional commissions 186
(e) Other complementary bodies under ECOSOC 187
(f) The United Nations specialized agencies 189
(g) Conclusion 203
10. The rule-making process and the future of international
law 205
(a) Introduction 205
(b) The standard mode of international law-making 207
(c) Other methods of international law-making 208
(d) Law-making and certain learned international institu-
tions 212
(e) Resolutions and declarations in international law-
making 213
(f) Is there a species of international judicial law-making? 216
(g) Certain recent innovations in international law-
making 217
PART THREE: LEGAL ASPECTS OF THE NEW
INTERNATIONAL ECONOMIC ORDER
11. Basic principles and perspectives of the New International
Economic Order 223
(a) The General Assembly initiated a study 224
(b) Certain regional developments 230
(c) A new dimension 234
12. The New International Economic Order and human rights 238
(a) The Brandt Report 239
(b) Reflections on the implications of the Report 243
(c) Human rights in economic historical perspectives 244
(d) Human rights and the Third World 249
VII
PART FOUR: HUMAN RIGHTS AND DIPLOMATIC LAW
13. Regional commissions on human rights with special
reference to Africa 255
(a) Towards the Universal Declaration of Human Rights 255
(b) Human rights in relation to the rule of law 261
(c) Assessment of existing human rights implementation
machinery 264
(d) Certain prerequisites for regional human rights
machinery 268
(e) The regional idea for Africa 272
(f) Summary of conclusions 280
14. Recent trends in diplomatic law and human rights 284
PART FIVE: THE INTERNATIONAL COURT OF JUSTICE
AND AFRICA
Introduction to Part Five 299
15. The era of protectorates, colonies and capitulations 300
16. The era of decolonization 317
17. The disappearance of the mandate and trusteeship systems 334
Table of international court cases 351
List of treaties, conventions, statutes, etc. 357
Bibliography 361
Index 365
VIII
Acknowledgments
The author is indebted for permission to use, in whole or in
part, the following material as indicated:
"Methodological Problems Facing the International Court
of Justice in the Application of International Law," published
in International Law: Teaching and Practice, by Stevens & Sons,
Ltd., London, 1982 (at Chapter 1) ; "The International Court
of Justice and the Non-Appearing Respondent" and "Recent
Trends in Diplomatic Law and Human Rights," lectures given
at Iowa University, Iowa City, Iowa, USA, September 1980,
unpublished as yet (at Chapters 2 and 14); "The Limits of the
Right of Intervention in a Case Before the International Court
of Justice," published in Festschrift to Judge Hermann Mosler,
by the Max-Planck-Institute, Heidelberg, 1982 (at Chapter 4);
"The Doctrine of Intertemporal Law," published in The Ameri
can Journal of International Law, Vol. 74, No. 2, April 1980
(at Chapter 6); "New Perspectives and Conceptions in Contem
porary Public International Law," published in The Denver
Journal of International Law and Policy, Vol. 10:3, December
1981 (at Chapter 7); "The Work of International Organizations
in the Economic and Social Fields," to be published in the Manual
on International Organizations, by the Hague Academy of Inter
national Law (at Chapter 9); "The Rule-Making Process and the
Future of International Law," Address before The American
Society of International Law, 75th Anniversary Meeting, Washing
ton, USA, 23 April 1981 (at Chapter 10); "Africa Before the
World Court," published in Gandhi Memorial Lectures 1981, by
the University of Nairobi, January 1981 (at Chapters 15, 16 and
17); "The International Court of Justice and the Nuclear Tests
Cases" and "Sovereign Immunity and Commercial Transactions,"
lectures given at the Nigerian Society of International Law, Lagos,
Nigeria, 1974and 1978(atChapters5 and8).
IX