In: International organization, Volume 1, Issue 3, p. 515-515
ISSN: 1531-5088
Corfu Channel Dispute: Following the Security Council's decision of April 9, 1947, to refer the Corfu Channel dispute to the Court, Great Britain submitted an application on May 22, 1947, instituting proceedings against Albania for the destruction of two British destroyers in the Corfu Channel in October, 1946. The dispute was to constitute the first case to come before the Court. As of July 15, 1947, no word had been received from Albania regarding British action, and there had been no decision as to the date on which the case would reach the Court.
In: International organization, Volume 7, Issue 3, p. 405-407
ISSN: 1531-5088
Amhatielos Case: On May 19, 1953, the Court, by a vote of 10 to 4 decided that the United Kingdom was "under an obligation to co-operate with Greece in constituting a Commission of Arbitration, in accordance with the Protocol of 1886, as provided in the Declaration of 1926". After reviewing the submissions of the two parties, and recalling that the Court had previously held that it had no jurisdiction to decide of the merits of the Ambatielos claim, the Court stated that the question at issue was whether the United Kingdom government was under an obligation to accept arbitration of the difference between that government and Greece concerning the validity of the claim presented by Greece "in so far as this claim is based on the Treaty of 1886". The majority of the Court felt that, for the purpose of determining the obligation of the United Kingdom, the words "claims … based on the provisions of the … Treaty of 1886" could not be understood as meaning claims actually supportable under that Treaty. The Court believed that these words could only mean "claims depending for support on the provisions of the Treaty of 1886, so that the claims will eventually stand or fall according as the provisions of the Treaty are construed one way or another". In its argument, the Greek government had invoked Articles I, X, XII and XV of the Treaty of 1886 and, relying on the most-favored-nation clause in Article X therein, invoked Article 16 of a treaty of peace and commerce between the United Kingdom and Denmark signed in 1661 as well as additional treaties between the United Kingdom and third states. The Hellenic government argued that these provisions supported their claim that the Ambatielos claim for denial of justice in British courts was based on the provisions of the 1886 treaty. The Court agreed that the difference between the parties was "the kind of difference which, according to the Declaration of 1926, should be submitted to arbitration".
Abstract At no time in recent history has it been more exciting to be a student of European patent law. Over the past ten years Europe has sought to create and restructure a significant portion of its patent law apparatus, including the introduction of a 'Unitary Patent' ('UP') that has effect in 17 European Union Member States (and counting), and the creation of a Unitary Patent Court ('UPC') that entered into force on 1 June 2023. The compelling policies underlying these dramatic changes are well documented, including enhanced uniformity, cost reductions, and other efficiencies. Indeed, the European patent system is poised to welcome international patent actors with a well-thought-out procedural regime. Yet all good policies must be supported by a legitimate legal foundation. The United Kingdom's highly publicized and often dramatic departure from the EU has reverberated throughout the European establishment, affecting issues relating to the economy, trade, immigration, labor, and Northern Ireland, to name just some of the most obvious. Perhaps what is not so evident, however, is the adverse legal effect that Brexit has had on the UPC, to such an extent that we are dubious about the court's legitimacy. Make no mistake, even if we prefer a fully integrated EU solution, we support the creation of UPC and the entire unitary initiative. However, in this paper we argue that it must be done in a manner that is legally principled, which requires an amended and re-ratified Unitary Patent Court Agreement.
In: International organization, Volume 2, Issue 3, p. 519-522
ISSN: 1531-5088
Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations: A General Assembly resolution of November 17,1947, requested the International Court of Justice to give an advisory opinion on the following question: "Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to theadmission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?"
In: International organization, Volume 13, Issue 4, p. 630-634
ISSN: 1531-5088
Case concerning the Aerial Incident of November 7, 1954 (United States v. Soviet Union): On July 7, 1959, an application instituting proceedings against die Soviet Union was filed in the Registry of the Court by the government of the United States. In its application the government of the United States alleged that on November 7, 1954, one of its aircraft was attacked and destroyed over the Japanese island of Hokkaido by fighter aircraft of the Soviet Union. It requested the Court to find that the Soviet Union was liable for the damages caused and to award damages in the sum of $756,604. It also stated that it had submitted to the Court's jurisdiction for the purposes of this case and that it was open to the government of the Soviet Union to do likewise. In accordance with Article 40 of the Statute of the Court, the application was thereupon communicated by the Registry to the government of the Soviet Union.
In: International organization, Volume 11, Issue 2, p. 384-384
ISSN: 1531-5088
Right of Passage Through Indian Territory (Portugal v. India): On April 15, 1957, the government of India filed with the Court a preliminary objection to the Court's jurisdiction to entertain the application of the government of Portugal. By an order of April 16, President of the Court fixed June 15, 1957, as the time-limit within which the government of Portugal could present a written statement of its observations and submissions on the objection. Meanwhile, proceedings on the merits were suspended.
The theoretical debate on pluralism in law has only indirectly overlapped with the debate on global justice. It has often seemed that the former appears as a merely institutional concern of experts in law, whereas the second as a moral preoccupation for philosophers, economists and activists. In my view the two issues are closely related. They both turn on a view of the legitimacy of international institutions. It is wrong for philosophers to ignore institutions of law and it is equally wrong for lawyers to ignore global justice. In order to see this we will need to set aside the artificial distinction that is often drawn between legal and political obligation. This is the epicentre of the 'positivist' theory of law, which is currently popular among legal philosophers. Legal positivism is an attractive theory because it simplifies law and legal reasoning. It is nevertheless misleading because it fails to capture both our basic common sense assumptions about law and the content of technical legal doctrine. Under the legal positivist dogma legal obligations and rights become inscrutable. They come to mysteriously occupy a space occupying both the world of fact and the world of value. Legal positivism is incoherent because law is another area of practical reason, a series of arguments that run parallel to morality and ethics. In my own earlier work I offered a theory of law as practical reason, which is constructivist in method and egalitarian in inspiration, based on the work of Kant and Rawls. I believe that the same theory can illuminate international institutions. In this essay I argue that once we understand the law as a body of rules, practices and institutions with moral standing, the question of pluralism and the question of global justice are seen as two sides of the same coin. Lawyers and philosophers have a common task, to understand and interpret the moral nature of the division of the world into states.
In: International organization, Volume 11, Issue 1, p. 160-162
ISSN: 1531-5088
Case of the Norwegian Loans Issued in France (France v. Norway): In an order of September 28, 1956, the Court fixed December 20, 1056, as the time-limit for the counter-memorial of the Kingdom of Norway, February 20, 1957, as the time-limit for the reply of the government of France and April 25, 1957, for the rejoinder of Norway. In the same order, the Court joined the objections raised by the Kingdom of Norway to the merits in the proceedings instituted by the French government in order that it might adjudicate in one and the same judgment on these objections and, if necessary, on the merits.
One of the putative benefits of incorporation in Delaware is the expertise and knowledge of the Delaware courts. Professor Jonathan Macey says that Delaware "offers current and prospective charterers . . . a judiciary with particularized experience and expertise in corporate law." Professor Faith Stevelman cites the "expertise" of Delaware's judges as "fostering the state's leading reputation in corporate law," which "safeguard[s] the financial returns which flow to Delaware from its chartering business." Professor Michael Klausner argues that Delaware's dominance will likely be permanent in part because of the corporate expertise of Delaware's judiciary. In fact, "[s]ome see the quality of the Delaware judiciary as the prime reason why corporations incorporate in Delaware." The assertion of Delaware judicial superiority is so much a majority view that it in effect constitutes conventional wisdom within the corporate law academy. Commentators have lauded not only the expertise of the Delaware judiciary but also its insulation from politics. Professors Marcel Kahan and Edward Rock have compared Delaware courts favorably to federal courts: "Indeed, since Delaware's judiciary is less politicized and has greater claims to expertise in corporate law than the federal judiciary, its rulings may enjoy greater legitimacy than would corporate rulings of federal judges." This essay offers a contrary perspective on this assertion of Delaware courts' expertise. While they may or may not be experts, I believe that their corporate law jurisprudence, especially over the last decade, has drifted toward incoherence. This might be for any of several reasons. But whatever the cause, the Delaware courts are putting themselves at risk of descending into legal and political illegitimacy. This essay will seek to explain why. Part I of this essay will explain the importance of explanation in building and maintaining judicial legitimacy in the face of the so-called "counter-majoritarian difficulty" inherent in judicial decision-making. Part II offers examples of courts that sacrificed their own legitimacy because of incoherent, poorly reasoned judgments that strike readers as being based more on politics than law. Part III explains the implications of these insights for Delaware courts, namely that the Delaware judiciary needs to do a better job of justifying its decisions in traditional legal terms. Otherwise, the Delaware judiciary will increasingly be seen as merely instituting its political views by way of judicial rulings.
In: International organization, Volume 4, Issue 4, p. 670-670
ISSN: 1531-5088
This case was brought to the Court following a dispute between Colombia and Peru on the interpretation of the Convention on Asylum signed at Havana in 1928 and the right of asylum. The government of Peru charged that the government of Colombia did not keep within the terms of the treaty when asylum was granted to Victor Raul Haya de la Torre, a writer and the head of a political party, by the Colombian government in the Colombian Embassy in Lima, Peru. Since the Court had neither a national of Colombia or Peru sitting on the bench, both governments availed themselves of Article 31 (3) of the Statute and named Dr. José Joaquin Caicedo Castilla (Colombia) and Dr. Luis Alayza y Paz Soldan (Peru) to sit as judges ad hoc.
In: International organization, Volume 9, Issue 4, p. 532-533
ISSN: 1531-5088
ApplicationsAerial Incident of October y, 1952 (United States v. Soviet Union): On June 2, 1955, the United States filed with the International Court of Justice an application instituting proceedings against the Soviet Union, on the grounds of certain willful acts said to have been committed by Soviet fighter aircraft against a United States Air Force B-29 aircraft andits crew off Hokkaido, Japan, on October 7, 1952. The United States claimed that a Soviet fighter aircraft, unlawfully overflying the territory of Japan at the instigation of the Soviet government, had without any provocation attacked and destroyed the United States Air Force B-29, causing it to crashinto the sea at a point between Yuri Island and Akiyuri Island in territory rightfully belonging to Japan; that the crew of eight, all members of the United States Air Force and nationals ofthe United States, had failed to return, and that the Soviet government had concealed from the United States government information as to the fate of the crew, and had notmade provision for the prompt return of any crew members whom it might still be holding or of whose whereabouts itwas informed. The United States application stated that the Court's jurisdiction for the purposes of this case was accepted by the United States. The damages the United States claimed to have suffered and for which it claimed the Soviet Union to beliable were specified in a note annexed to the application; the United States claimed that the actions withwhich it charged the Soviet government constituted serious violations of international obligation for which it demanded monetary and other reparation.