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In this ground-breaking study, taken on the initiative of U.S. Supreme Court Justice Sandra Day O'Connor, Thomas M. Franck, and Gregory H. Fox explore the use of international law decisions by national courts, providing in-depth materials for answers to such critical and practical questions as: To what extent do national judges treat the decisions of their international colleagues as binding or persuasive? Do national judges regard the outcomes of international decisions as res judicata? As evidence of law or fact? Published under the Transnational Publishers imprint

"This book explores the debate over universal jurisdiction in international criminal law, aiming to unpack a practice in which international lawyers continue to disagree over the concept of universal jurisdiction. Using Martti Koskenniemi's work as a foil, this book exposes the argumentative techniques in operation in national and international adjudication since the 1990s. Drawing on overarching patterns within the debate, [the author] argues that it is bounded by a tension between contrasting political preferences or positions, labelled as moralist ('ending impunity') and formalist ('avoiding abuse') and she reads the debate as a movement of hegemonic and counter-hegemonic positions that struggle for hegemonic control. However, she draws out how these positions (moralist/formalist) merge into one another and this produces a tendency towards a "middle" position that continues to prefer a particular preference (moralist or formalist). Aisling O'Sullivan then traces the transformation towards this tendency that reflects an internal split among international lawyers between building a utopia ("court of humanity") and recognizing its impossibility of being realized

It has been said that consent is the cornerstone of international law. Even if, strictly speaking, the progression of international lawmaking has taken us beyond that view on matters of substance, surely the proposition maintains traction on matters of jurisdiction. The increase in international treaties conferring courts and tribunals with competence to resolve disputes has tied many states to the mast, but, like Odysseus, we must remember that the origin of that conferral is consent.

Comment and correspondence: 161-3 Ag, 252-3 S '60.

When, on October 24, 1983, the U.S. District Court for the Northern District of California handed down its decision in Timberlane Lumber Co. v. Bank of America and denied U.S. jurisdiction out of regard for the Honduran "system of justice," there may have been some surprise that the case was still pending. The Timberlane decision of 1976 of the Court of Appeals for the Ninth Circuit, which remanded the matter to the district court, had already become a classic, even though it was preceded by the 1968 decision in United States v. First National City Bank on the production of documents located abroad. The Timberlane approach outlined by Judge Choy, under which the exercise of antitrust jurisdiction has to be restrained by a case-by-case analysis of various factors, was widely discussed (and usually praised) in legal writing, and was also followed by federal courts of the Second, Third, Fifth, Ninth and Tenth Circuits.

Intro -- Editors Note and Acknowledgements -- Chronological List of Cases of Nicaragua Before the International Court of Justice -- 1958: Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) -- Judges Ad Hoc Ago, Urrutia Holguin -- 1984: Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) -- Judge Ad Hoc Colliard -- Provisional Measures -- Questions of Jurisdiction and/or Admissibility -- Declaration of Intervention -- Merits -- Reparation -- 1986: Border and Transborder Armed Actions (Nicaragua v. Costa Rica) -- 1986: Border and Transborder Armed Actions (Nicaragua v. Honduras) -- 1986: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) -- Judges Ad Hoc Valticos, Torres Bernrdez -- 1999: Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) -- Judges Ad Hoc Torres Bernndez, Gaja -- 2001: Territorial and Maritime Dispute (Nicaragua v. Colombia) -- Judges Ad Hoc Mensah, Cot -- 2005: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) -- Judge Ad Hoc Guillaume -- 2010: Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) -- Judges Ad Hoc Guillaume, Dugard -- 2011: Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) -- Judges Ad Hoc Guillaume, Dugard -- PENDING CASES BEFORE THE INTERNATIONAL COURT OF JUSTICE. -- 2013: Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the ... -- Judges Ad Hoc Skotnikov, Brower -- 2013: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) -- Judges Ad Hoc Daudet, Caron

Under international law, there is no single legal body with the power to generate norms that are binding on all subjects without their consent. There is no centralized executive authority entrusted with implementation, while international adjudicating bodies have no compulsory or comprehensive jurisdiction. Apart from the absence of a centralized law-making and law-enforcement authority, most publicists insist that with the exception of jus cogens, there is no a priori hierarchy of sources under international law. This state of play is of particular relevance when one assesses the role of international adjudicating bodies as they settle disputes between states. International case law, like the writings of publicists, is not a formal source of international law but, rather, provides 'evidence' of the applicable norms in the circumstances. Decisions of the International Court of Justice (ICJ) and other international adjudicating bodies are binding only upon the parties to the dispute. Nevertheless, by taking as an example the conservation of living marine resources beyond national jurisdiction, this article attempts to demonstrate that the contribution made by the ICJ and other international tribunals to the development of international law may be more significant, especially when one considers the scenario referred to earlier. This article will examine various judgments of the ICJ and other international tribunals and assess their role and relevance in the development of the international regulation of living marine resources occurring beyond national jurisdiction. The way states interpret the freedom of access over living resources on the high seas determines the manner in which they exercise regulatory and enforcement jurisdiction over them as well as the kind of conservation measures states obligate their nationals to take when fishing in marine areas beyond national jurisdiction. Bodies adjudicating international disputes over the exploitation of living marine resources have considered various legal issues in this field of international law, the following being among the most common. First, states tend to disagree on how they interpret the legal implications of freedom of fishing and the obligation to take conservation measures as a qualification to it. The article will examine those fisheries cases that have discussed to what extent the flag state's freedom of access over living marine resources on the high seas is subject to the rights, duties, and interests of coastal states and of other flag state participants in the same fishery. Second, another contentious legal issue relates to the interpretation of the exclusive enforcement jurisdiction of the flag state and to whether international law allows other states any right to act against states that either fail to adopt conservation measures on the high seas or that choose less stringent ones than those agreed upon via international co-operation agreements. This legal question revolves around the abuse of the flag state's exclusive enforcement jurisdiction on the high seas. It affects both coastal states that have painstakingly developed a conservation plan for their exclusive economic zone (EEZ) or their exclusive fishing zone (EFZ) as well as states that are participants in the same high seas fishery and that have negotiated conservation measures via a co-operation agreement. In the first case, the coastal state expects flag states to exercise compatible conservation measures when their nationals fish on the high seas, and, in the second case, flag states, whose nationals are participating in a fishery, find it particularly frustrating and counter productive when another flag state who is not a party to the conservation agreement reached via co-operation takes no action against its fishing vessels that violate the conservation measures established in the agreement or else adopt inferior ones. Third, another question that often arises in international fisheries disputes relates to the legal status of living marine resources occurring beyond national jurisdiction and whether international law obligates all states to ensure the conservation of living marine resources on the high seas whether they are harvestable or not. The debate surrounding the legal status of these resources also questions whether the obligation to take conservation measures on the high seas is vested in the international community at large as an erga omnes obligation. The cohort of rules regulating the conservation of marine living resources on the high seas has developed on an ad hoc basis, as a reaction to the historical and political developments that have occurred throughout the centuries. As it has become more and more specialized, this branch of international law has suffered from fragmentation, which has led to ambiguity and uncertainty when states have sought to interpret and apply applicable norms. The decisions of international adjudicating bodies provide the judges with an opportunity to identify what is the position of international law from the myriad of norms that have accumulated over time. This article will attempt to examine various international cases that have discussed the position of international law in fisheries disputes. Occasionally, it will also refer to some other landmark cases that have treated an entirely different subject matter whenever the legal arguments made by the judges therein may elucidate the interpretation of applicable international norms relating to the legal questions listed earlier. ; peer-reviewed