1st Edition
The International Court of Justice and Municipal Courts An Inter-Judicial Dialogue
Recent decades have brought international and municipal courts much closer together and induced meaningful cooperation. This holds true also for the International Court of Justice and domestic judicial institutions as they engage actively in an inter-judicial dialogue, particularly on the normative level. Due to the impact of globalisation and internationalisation, the World Court has expanded its jurisprudence to also accommodate references and analysis of external judicial organs and their pronouncements. Likewise, ICJ decisions are referred to and consulted by municipal courts as authoritative statements of international norms or assistance in fact determination.
This monograph examines this inter-judicial dialogue in a comprehensive manner by identifying and analysing all its aspects as evidenced in respective jurisprudence. Surprisingly, the mutual conversation in judicial decisions between the World Court and national judicial institutions has drawn little attention from international legal scholarship, and the book is designed to fill this lacuna.
Introduction
1 Municipal courts’ decisions in the jurisprudence of the International Court of Justice
1.1 Questions of international law and municipal jurisprudence
1.1.1 Municipal courts’ decisions and interpretation of treaties
1.1.2 Municipal courts’ decisions and determination of customary rules
1.1.3 Municipal courts’ decisions as subsidiary sources of international law
1.1.4 Jus cogens before the ICJ and municipal courts
1.1.5 International remedies and municipal courts’ decisions
1.1.6 Influence of municipal courts’ decisions on the jurisdiction of the ICJ and admissibility of cases
1.1.7 Procedural issues and (dis)analogy of national process of law
1.2 Question of facts and municipal judicial decisions
1.2.1 Municipal courts’ decisions and the subject-matter of a dispute before the ICJ
1.2.2 Municipal courts’ decisions as effectivité
1.2.3 Fact-finding function of municipal courts and factual determinations of the ICJ
1.2.4 Questions of municipal law before the ICJ
1.3 ICJ’s position vis-à-vis municipal courts and their role in the jurisprudence of the World Court
1.3.1 ICJ’s competence to assess municipal judicial decisions
1.3.2 The ICJ as an ultimate criminal court of appeal?
1.3.3 Assessing the validity and scope of municipal courts’ decisions
1.3.4 Distinguishing between the case at hand and the case before a municipal court
1.3.5 Role of municipal courts in implementing ICJ decisions
1.3.6 ICJ’s directives to municipal courts
1.3.7 ICJ’s citation of municipal courts’ decisions
1.3.8 Capability of municipal courts in the field of international law
2 Enforcement of ICJ decisions in municipal courts
2.1 International legal framework pertaining to the enforcement of ICJ decisions
2.1.1 Obligation to comply with ICJ decisions
2.1.2 Binding force of ICJ decisions
2.1.3 Enforcement of ICJ decisions in the UN Charter
2.1.4 Other methods of enforcement
2.2 Practice of ICJ decision enforcement in municipal courts
2.2.1 ICJ decision enforcement sensu stricto
2.2.2 ICJ decision enforcement sensu largo
2.2.3 Quasi-enforcement of ICJ decisions
2.2.4 Municipal courts’ implementation of ICJ advisory opinions
2.3 Municipal courts as enforcers – a general overlook
3 Reception of decisions of the ICJ by municipal courts
3.1 Empirical data
3.2 Questions of international law
3.2.1 ICJ decisions as evidence of international law
3.2.2 ICJ decisions as authoritative treaty interpretation
3.2.3 ICJ decisions and rationale behind international norms
3.2.4 ICJ decisions and sources of international law
3.3 Questions of fact
3.4 Municipal courts distinguishing between ICJ conclusions and cases at hand
3.5 Status of ICJ decisions in the jurisprudence of municipal courts
Final conclusions
Bibliography
Index
Biography
Oktawian Kuc, formerly a Legal/Policy Officer at the United Nations Office in Geneva, is a practicing attorney admitted to the bar in Poland and New York State. He holds degrees from Harvard Law School (LLM) and the University of Warsaw (PhD in Public International Law, Master of Laws, Master in International Affairs). He worked as an Associate Professor at the Cardinal Stefan Wyszynski University in Warsaw and was a Helton Fellow of the American Society of International Law as well as a DAAD Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
"Kuc’s effort is quite laudable, giving great insight into the reception of ICJ jurisprudence by municipal courts around the world. He may very well inspire more thorough study of judicial attitudes and trends across a wider range of jurisdictions." Alina Papanstasiou, University of Cambridge, UK
