Document Type : Article
Authors
1 Ph.D. Student in International Law, Khorasgan Branch, Islamic Azad University, Isfahan, Iran
2 Ph.D. in International Law, Associate Prof., Department of Law, Faculty of Law, Khorasgan Branch, Islamic Azad University, Isfahan, Iran
3 Ph.D. in Public International Law, Assistant Prof., Department of Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Abstract
Undoubtedly, International Court of Justice as the principal judicial organ of the United Nations and also one of the highest international forums with general subject-matter jurisdiction has had an important role in development of international law for decades. In spite of ICJ’s core role in the development of international law, the legitimacy of this contribution has always been contested by some scholars. It is obvious that ICJ is not and could not be a legislative body in international law, but through of its judicial capacity the ICJ has developed existing rules and clarified the vague customary rules. In this respect, the legitimacy of those decisions or practice has always been questioned. As this article argues, ICJ through its high position in the international dispute settlement system and also its justification capability, has obtained enough legitimacy of the development of international law and such legitimacy has been approved by international community.
Keywords
انگلیسی
- A) Books
- Alvarez, José E. (2005), International Organizations as Law-makers, New York, Oxford University Press.
- Bedi, Shiv RS (2007), The Development of Human Rights Law by the Judges of the International Court of Justice, Portland, Hart Publishing.
- Boyle A. & C. Chinkin (2007), the Making of International Law, New York, Oxford University Press
- Dworkin, Ronald (1986), Law's Empire, Cambridge and London, Harvard University Press.
- Franck, Thomas M. (1990), the Power of Legitimacy Among Nations, New York, Oxford University Press.
- Franck, Thomas M., (1995), Fairness in International Law and Institutions, New York, Oxford University Press
- Friedmann, Wolfgang (1972), Law in a Changing Society, Berkeley and Los Angeles, University of California Press.
- Green, James A. (2009), The International Court of Justice and Self-Defence in International Law, Portland, Hart Publishing, 2009
- Hart. H. L. A. (1994), The Concept of Law, New York, Oxford University Press.
- Independent International Commission on Kosovo (2000), the Kosovo Report: Conflict, International Response, Lessons Learned, New York, Oxford University Press.
- Merrills, J. G. (2011), International Dispute Settlement, Cambridge, Cambridge University Press.
- Schlutter, Birgit (2010), Developments in Customary International Law: Theory and the Practice of the International Court of Justice and the International ad hoc Criminal Tribunals for Rwanda and Yugoslavia, Leiden and Boston, Martinus Nijhoff Publishers and VSP.
- B) Articles
- Abi-Saab, Georges (2008), “The Security Council as Legislator and as Executive in its Fight Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy”, in Rüdiger Wolfrum, Volker Roben (eds.), Legitimacy in International Law, Springer.
- Bodansky, D. (2008), “The Concept of Legitimacy in International Law”, in: Rüdiger Wolfrum and Volker Roben (eds.), Legitimacy in International Law, Springer.
- Chan, Loretta (2016), “The Dominance of the International Court of Justice in the Creation of Customary International Law”, Southampton Student Law Review, Vol. 6.
- D’Aspremont, Jean (2007), “The recommendations made by the International Court of Justice”, International and Comparative Law Quarterly, Volume. 56 / Issue 01.
- De wet, Erika (2008), “The Legitimacy of United Nations Security Council Decisions in the Fight against Terrorism and the Proliferation of Weapons of Mass Destruction: Some Critical Remarks”, in Rüdiger Wolfrum and Volker Roben (eds.), Legitimacy in International Law, Springer.
- Donoghue, Joan E. (2014), “The Effectiveness of the International Court of Justice”, Proceedings of the Annual Meeting (American Society of International Law), Vol.108.
- Fassbender, Bardo (2002), “Uncertain Steps into a Post Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq”, European Journal of International Law, Vol. 13.
- Franck, Thomas M. (1988), “Legitimacy in the International System”, American Journal of International Law, Vol. 82, No. 4.
- Franck, Thomas M. (2006), “the Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium”, American Journal of International Law, Vol. 100.
- Grossman, Nienke (2013), “The Normative Legitimacy of International Courts”, Temple Law Review, Vol. 86.
- Grossman, Nienke (2017), “Solomonic Judgments and the Legitimacy of the International Court of Justice”, in: Nienke, Grossman and others (eds), Legitimacy and International Courts, Cambridge University Press.
- Jodoin, Sebastien (2005), “Enhancing the Procedural Legitimacy of the U.N. Security Council: A Normative and Empirical Assessment”, Sri Lanka J. Int'l L., Vol. 17.
- Kirgis, Frederic L. (1995), “The Security Council’s First Fifty Years”, American Journal of International Law, Vol. 89.
- Kiss, Amarilla (2016), “The Legitimacy of the International Court of Justice: The World of International Judges with special reference to Latin America”, Revista Politica Hoje, Vol. 25, No. 2.
- Kumm, Mattias (2004), “The Legitimacy of International Law: A Constitutionalist Framework Analysis”, European Journal of International Law, Vol. 15.
- Martinez, Luis Miguel Hinojosa (2008), “The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political and Practical Limits”, Int'l & Comp. L.Q., Vol. 57.
- Narenda N Singh (1990), “The Legislative Process in International Law: A General Comment”, Bond Law Review, Vol. 2, Issue 2.
- Nesi, Giuseppe (2013), “The Quest for a ‘Full’ Execution of the ICJ Judgment in Germany v. Italy”, Journal of International Criminal Justice Vol. 11.
- Reisman, W.M., (2005), “The Democratization of Contemporary Law-Making Processes and the Differentiation of their Application”, in: Rüdiger Wolfrum/Volker Röben (eds.), Developments of International Law in Treaty Making, Springer.
- Roele, Isobel (2014), “Disciplinary Power and the UN Security Council Counter Terrorism Committee”, J. Conflict & Sec. L., Vol. 19.
- Roele, Isobel, (2014), “Disciplinary Power and the UN Security Council Counter Terrorism Committee”, J. Conflict & Sec. L., Vol. 19
- Rosalyn Higgins (2003), “The ICJ, the ECJ, and the Integrity of International Law”, the International and Comparative Law Quarterly, Vol. 52, No. 1.
- Sellers, Mortimer N. S. (2017), “Democracy, Justice, and the Legitimacy of International Courts”, in: Nienke, Grossman and others (eds), Legitimacy and International Courts, Cambridge University Press.
- Shaffer, Gregory C. & Pollack, Mark A. (2011), “Hard versus Soft Law in International Security,” University of Minnesota Law School, Legal Studies Research Paper Series Research Paper, No. 11-13
- Shany, Yuval (2012), “Assessing the Effectiveness of International Courts: A Goal-Based Approach”, AM. J. INT'L L., Vol. 106.
- Stein, Eric (2001), “International Integration and Democracy: No Love at First Sight”, American Journal of International Law, Vol. 95.
- Stoppioni, Edoardo (2016), “the ICJ Decisions in the Marshal Islands Cases or the Unintended Consequences of “Awareness”.
- Stoppioni, Edoardo (2017), “Decentring the ICJ: A critical analysis of the Marshall Islands judgments”, Questions of International Law, Zoom-out, Vol. 45.
- Tams, Christian J. (2013), “The ICJ as a ‘Law-Formative Agency’: Summary and Synthesis”, in: Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice, Oxford University Press.
- Treves, Tullio (2017), “Aspects of Legitimacy of Decisions of International Courts and Tribunals”, Seqüência (Florianópolis), No. 75.
- C) Cases
- Ambatielos (Greece v. United Kingdom), Judgment of 19 May 1953
- Anglo-Iranian Oil Co. (United Kingdom v. Iran), Judgment of 22 July 1952.
- Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002.
- Continental Shelf (Malta v. Libyan Arab Jamahiriya), 1985 I.C.J. 13, 44 (Judgment).
- Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), 1982 I.C.J. 18, 35 (Judgment of Feb. 24)
- Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951
- Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997
- Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ Judgment (Feb. 3, 2012)
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004
- Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996
- Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999
- Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986.
- North Sea Continental Shelf Cases (W. Ger. v. Den. & Neth.), 1969 I.C.J. 54 (Judgment of Feb. 20).
- Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdomm), Judgment of 5 October 2016
- Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012.
- Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, Individual Opinion by M. Alvarez.
- South West Africa (Ethiopia v. SouthAfrica), Judgment of 18 July 1966.
References in Persian
- Books
- Ghazi, Abolfazl (2009), Requirements of Constitutional Rights, Tehran: Mizan Publishing (In Persian).
- Zarshanshan, Shahram (2013), Formation and Identification of Customary International Law, Tehran: Ganj-e-Danesh (In Persian).
- B) Articles
- Habibi, Homayoun & Shamloo, Soodeh (2013), "The Role of the International Court of Justice in the Development of International Law", Public Law Research, No. 41 (In Persian).
- Khaleghi, Ali (2004), "Belgium and the end of the decade of the dream of universal jurisdiction in international crime" , Legal Research, No. 6 (In Persian).
- Mumtaz, Jamshid (2010), "International Court of Justice: The End of Speech", Proceedings of the Conference on the Role of the International Court of Justice in the Continuity and Development of International Law, Iranian Association for United Nations Studies, Tehran (In Persian).
- Qari Seyed Fatemi, Seyed Mohammad (2014), "Introduction to: Buchanan, Allen, The Legitimacy of International Law", translated by Maryam Haji Arab, collection of articles on the international community and international law in the 21st century, Institute of Legal Studies and Research of its municipality (In Persian).
- Seifi, Seyed Jamal (2010), "The International Court of Justice is the main pillar of the United Nations judiciary", Proceedings of the Conference on the Role of the International Court of Justice in the Continuity and Development of International Law, Iranian Association for UN Studies, Tehran (In Persian).
- Ziaee Bigdeli, Mohammad Reza and Hassan Bagherzadeh (1398), "Theories of governments' adherence to international law from the perspective of persuasion", International Legal Journal, No. 60 (In Persian).
- Ziaei Bigdeli, Mohammad Reza (2010), "The Mission of the Court in the Protection of International Law", Proceedings of the Conference on the Role of the International Court of Justice in the Continuity and Development of International Law, Iranian Association for United Nations Studies,Tehran (In Persian).
)