SUBJECTS OF THE ACADEMY'S WRITTEN EXAMINATION ON
PUBLIC INTERNATIONAL LAW SINCE 2006
Treaty-Based Autonomous Regimes and their Relationship with General International Law.
Develop the theoretical aspects of the question 2007 and illustrate your answer with concrete references to practice and case-law.
What Unilateral Acts Are Permissible in Contemporary International Law?
What Regime for Unilateral Acts Taken for a Wide Range of Purposes Will Best Serve the World Community in the Twenty-First Century?
What is the Theoretical and Practical Impact of International Criminal Law on International Law?
"Fragmentation" of International Law through "Proliferation" of International Courts and Tribunals: A Real Problem or Artificial Debate?
"The Security Council and Human Rights"
Obligations to International Community
“Customary and Treaty Law in the Jurisprudence of the International Court (PCIJ – ICJ)”
"In what sense and to what purpose is International Law a system?"
Dissenting Opinion of Judge ad hoc Kreca
§ 43 (Excerpt)
“Jus cogens creates grounds for a global change in relations of State sovereignty to the legal order in the international community and for the establishment of conditions in which the rule of law can prevail over the free will of States. As an objective, non-eliminatory norm, it constitutes a material basis, a criterion for challenging the legality of individual acts in the international community. Therefore, it essentially limits the impact of effectiveness in international law”.
Please discuss with reference both to practice and theory.
Judge Peter Tomka, while recalling that the Court “has never abandoned its view (…) that customary law is ‘general practice accepted as law’”, stressed that “in practice, the Court has never found it necessary to undertake such an inquiry for every rule claimed to be customary in a particular case (…) Sometimes this entails a direct review of the material elements of custom on their own (…) or at least to use rules that are clearly formulated in a written expression (…)” (P. Tomka, “Custom and the International Court of Justice”, The Law and Practice of International Courts and Tribunals, vol. 12, 2013, p. 197).
QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUAN COAST
(NICARAGUA v. COLOMBIA)
ICJ JUDGMENT- 17 MARCH 2016
“1. The res judicata principle
- The Parties agree that the principle of res judicata requires an identity between the parties (personae), the object (petitum) and the legal ground (causa petendi). They likewise accept that this principle is reflected in Articles 59 and 60 of the Statute of the Court. These Articles provide, respectively, that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”, and that “[t]he judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” (…)
- The Court recalls that the principle of res judicata, as reflected in Articles 59 and 60 of its Statute, is a general principle of law which protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal (…)”.
Lex ferenda and the evolution of international law.
“In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character" (Northern Cameroons, Judgment, I.C.J. Reports 1963, at p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.” Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253, at 259 (§ 23).
Please discuss the excerpt above, with reference both to practice, not limited to that of the ICJ, and theory.
“There are certain differences or divergence of opinions between States which inherently elude judicial settlement through the application of the law. Even when these divergences have a legal dimension, tackling those legal aspects by judicial means may not necessarily lead to their settlement. This may be due to the fact that the role of the law is often limited by virtue of its instrumental dimension.” Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), ICJ Judgment, 1st October 2018, Declaration of President Yusuf, para. 7.
SUBJECTS OF THE ACADEMY'S WRITTEN EXAMINATION ON
PRIVATE INTERNATIONAL LAW SINCE 2006
The Common-law countries have been subject to criticism with regard to various matters in the field of jurisdiction in private international law.
- Explain what these criticisms are, consider the arguments for and against them and say whether in your opinion they are justified.
- Support your answer with practical (as well as theoretical) arguments based on decided cases and legislation.
Choice of Court Agreements and Arbitration Agreements.
The late Professor Arthur von Mehren of Harvard Law School stated the following in an article published in 20011:
"The fundamental ... [challenge] that conflicts law faces in the ... [XXIst] century is whether jurists [including courts, scholars, and practitioners] can arrive at shared standards [and mutually respected principles] of litigational and substantive justice."
Professor von Mehren then asks whether theory and practice relating to jurisdiction, choice-of-law and recognition and enforcements of judgments are "likely to move in the direction of parochial-unilateralism or cosmopolitan-bilateralism."2. He warned of the risk of disenchantment with the response.
Please discuss your views concerning the challenge identified in the above quotation by Professor von Mehren and your response to the question raised by him. Include in your response reference to the thinking of other identified civil and common-law scholars in the field of private international law.
You are required to illustrate your answer with reference to specific cases or concrete hypothetical situations (including both the facts and applicable legal principles in your answer).
If you wish, you may discuss how your response would be different from what might have been the answer to a similar challenge and question during the first part of the 20th century.
Your response may include references to materials that were not necessarily presented and issues not discussed during the general or special courses of this summer.
1 A. von Mehren, "American Conflicts Law at the Dawn of the 21st Century," 37 Willamette L. Rev. 133, 135 (2001)
2 Id., 138.
In an article published in a volume issued in honor of Professor Guy Flattet, in 1985, Professor Bernard Dutoit, under the title « Ordre public: chameleon of Private International Law? », wrote the following:
« The concept of ordre public thus shows itself to be indispensable in a system of private international law inherited from Savigny which is based on a wide range of abstract rules of conflicts that, in themselves, do not take any values into account. It is therefore clearly necessary to make room in such a system for the essential values that are the bedrock of society and that Savigny, from the viewpoint of equally "civilised" nations, could take for granted.
By virtue of its very function, ordre public therefore cannot be constrained within any static definition. Any attempts in this direction will burst like soap bubbles. Ordre public, which reflects the current status of civilisation and morals in a given country, adapts its colour, like a chameleon, in close harmony with socio-cultural changes. »
Please discuss the remarks made by Professor Dutoit in the above quoted sentences. You may include references to the thinking of other scholars and to decisions you may know. Your response may include references to materials that were not necessarily presented and issues not discussed during the general or special courses of this summer.
Are conflict rules of an essentially technical nature without giving preference to any particular substantive outcome, or can they reflect substantive values?
What methods can be used by a legislator in order to promote substantive goals by means of private international law?
In his General Course of Private International Law, La dimension sociale du droit international privé, (La Haye, ADI Poche, 2011), Professor Andreas Bucher wrote at p.55 (translated from French) :
" What has become of the " Community of Law between States" ? Defined in a savignian manner, it has quite simply disappeared for a long time. As soon as one admits that legal relations respond to certain objectives and that these tend not to be the same for different states, one cannot affirm the existence, a priori, of an international unity of solutions and make it the foundation of rules of conflict [of laws and of jurisdictions] as is proposed by savignian teaching ".
Comment on this affirmation of Professor Bucher.
"Party autonomy - foundations, limits and modalities of exercise" - Please elaborate.
P.S. Mancini expresses, in his report to the Institut de droit international of 1874, the idea that every State can, "in the name of the principle of political independence of the State, prohibit, within the limits of its territory, any violation of its public law and of the public policy of the country as established by the national will". Please discuss this text in light of present day private international law.
Provide a critical analysis of the said “method of recognition of legal situations”. Please introduce both theoretical and practical considerations in your answer.
Critically discuss the value of predictability in private international law.
Discuss whether and to what extent contemporary private international law differs from the classical model articulated by Savigny (and later Kegel), and explain the reasons for such differences.
Decisional harmony is no longer compatible with contemporary methodologies in Private International Law. Discuss.
A. T. Von Mehren, "Choice of Law and the Problem of Justice", Law and Contemporary Problems, Vol. 41, N.º 2, 1977, p. 42: "(…), one who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to disappointment". Discuss.
Is the influence of human rights law on private international law of a disruptive quality?