An analytical study revisiting debate on interpretation of Article 38 of the Statute of International Court of Justice

Article 38(1) of the Statute of International Court of Justice (hereinafter ICJ) is today generally seen as a direction to the significant sources of international law, which the world court must consider in resolving disputes; however, the list is not exhaustive nor encompasses all the formal and material sources of the international legal system. Article 38 of the Statute of ICJ was written ninety years ago in a different world, a question is under debate in many states, whether or not sources mentioned in Article 38 of the statute are compatible with needs of 21st century ? In recent decade, many new actors come on the stage which have transformed international law and now it is not only governs relations among states but also covers many International Organizations. Article 38(2) does refer to the other possible sources but does not define them. Moreover, law is a set of rules that citizens must follow to regulate peace and order in society. These laws are binding on both the individual and the state on a domestic and international level. Do states regard this particular rule as a rule of international law? The modern legal system of states is in the form of a specified and well organized set of rules, regulating affairs of different organs of a state. States also need a body of rules for their intercourse with each other. These sets of rules among states are called “International Law.” This article examines international law, its foundation and sources. It considers whether international conventions and treaties can be the only way states can considerably create international law, or there is a need for clarity about the sources of international law. Article is divided into two parts, the first one deals with sources of international law discussed in Article 38 of the statute of International Court of Justice whereas the second one discusses the material and formal sources of law, which still need reorganization as sources of law.

Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.

Territorial Integrity and Self-Determination : The Approach of the International Court of Justice in the Advisory Opinion on Kosovo

[EN] On 17 February 2008 Kosovo approved its declaration of independence from Serbia. The declaration was raised as a unilateral secession, a category which to date is widely debated by the international community, but supported in that case by a respectable number of the United Nation member states. A great many legal issues have been raised by the International Court of Justice's Advisory Opinion on Kosovo. This opinion was eagerly awaited by legal scholars due to both its possible effects and the scope of its principles outside the context of decolonization in what it could constitute of new approach to the international scenario for the twenty-first century. The ICJ stated that the declaration of independence was in accordance with international law if it was not prohibited. The answer turned on whether or not international law prohibited the declaration of independence, without ever examining whether an entity seeking secession is entitled with a positive right to secede and if so, under which circumstances. The basic issue can be summarised as whether or not we are facing a new course in the interpretation of certain classical categories of international law: the principle of territorial integrity, statehood, sovereignty, recognition, the right to external self-determination, etc. In this study we shall analyse some of the aspects arising from the Advisory Opinion of the International Court of Justice on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo focusing on the territorial issue. Firstly we shall analyse the scope of the principle of territorial integrity of States and how it operates ; secondly, we shall focus on the scope of that principle in relation to the interior of the State, and ask ourselves how international law operates in relation to declarations of independence. Lastly, we shall deal with the principle of respect for territorial integrity in the specific case of Serbia with respect to Kosovo, and then end with a series of general conclusions. This study aims, definitely, to contribute to the theoretical debate on the challenges to the traditional certainties of international law in this area.

Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes

The International Court of Justice has issued its long-awaited decision in the suit filed by Bosnia and Herzegovina against Serbia and Montenegro with respect to the 1992–1995 war. The decision confirms the factual and legal determinations of the International Criminal Tribunal for the former Yugoslavia, ruling that genocide was committed during the Srebrenica massacre in July 1995 but that the conflict as a whole was not genocidal in nature. The Court held that Serbia had failed in its duty to prevent genocide in Srebrenica, although—because, the Court said, there was no certainty that it could have succeeded in preventing the genocide—no damages were awarded. The judgment provides a strong and authoritative statement of the general duty upon states to prevent genocide that dovetails well with the doctrine of the responsibility to protect.

UK Power Sector Challenge to National Allocation Plan Under the EU Emissions Trading Scheme Refused by the European Court of Justice

In Case T-130/06 Drax Power and others v European Commission, the Court of First Instance held that an application by Drax Power and others for annulment of Commission Decision (C(2006)426 final of 22 February 2006 concerning a proposed amendment to the National Allocation Plan notified by the UK in accordance with the EU Emissions Trading Directive was inadmissable. The Court ruled that the applicants could not be considered to be 'directly concerned' by the contested decision within the meaning of the fourth paragraph of Article 230 of the European Treaty, on legal standing: 'Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision, which, although in the form of a regulation or a decision addressed to another persion, is of direct and individual concern to the former...'