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THE FUNCTION OF LITIGATION IN INTERNATIONAL SOCIETY

Published online by Cambridge University Press:  16 February 2012

Vaughan Lowe
Affiliation:
All Souls College, Oxford.

Extract

The title of this article1 is drawn from Sir Hersch Lauterpacht's famous monograph, published in 1933, entitled The Function of Law in the International Community.2 Writing in a decade when the shattering effects of the physical destruction wrought by World War I were giving way to the debilitating effects of the Great Depression, and when the invasions of Manchuria and Abyssinia would sit side-by-side with the rise of Fascism in Germany and the great Stalinist terror in Russia, Lauterpacht was, not unnaturally, seeking a better way to a peaceful future under the Rule of Law. At that time, the recently established International Court in The Hague was dealing with acutely political cases, such as the question of the compatibility of the Austro-German Customs Union with the post-war peace settlement;3 and the cool rationality of debate in the Peace Palace seemed to offer a better way.

Type
Shorter Articles
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 This paper is a version of the first Annual Baker & McKenzie/UCL Centre for International Courts and Tribunals Lecture, delivered at Middle Temple Hall in June 2011.

2 Lauterpacht, H, The Function of Law in the International Community (Oxford 1933)Google Scholar.

3 Customs Regime between Germany and Austria, Advisory Opinion PCIJ Rep Series A/B No 41.

4 ibid 437, cf, references to the ‘realm’ (357) or ‘command’ (412) of Law.

5 Eliot, TS, Collected Poems 1909–1935 (Harcourt 1936) 194Google Scholar.

6 Lauterpacht (n 2) 437.

7 Hirst v United Kingdom (no 2) (2006) 42 EHHR 41.

8 See, for example, the cases listed on the ICSID website: <http://icsid.worldbank.org/ICSID/Index.jsp>.

9 See, eg, Valencia, MJ, Van Dyke, JM and Ludwig, NA, Sharing the Resources of the South China Sea (University of Hawaii Press 1999)Google Scholar.

10 See V Gray Hardcastle, ‘On the Normativity of Functions’, and R Cummins, ‘Neo-Teleology’, in A Ariew, R Cummins and M Perlman, Functions: New Essays in the Philosophy of Psychology and Biology (Clarendon Press 2002) 144–156, and 157–172 respectively.

11 See, eg, Schulte, C, Compliance with Decisions of the International Court of Justice (OUP 2004)CrossRefGoogle Scholar.

12 Hirst (n 7).

14 House of Commons Debates, 21 March 2011, cols 700–703.

15 NATO ‘Statement on Kosovo issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington, D.C.’ (23 April 1999) Press Release S-1(99)62; and see the papers in (2000) 49 ICLQ 876–943.

16 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973.

17 Gorman, S and Barnes, JE, ‘Cyber Combat: Act of WarThe Wall Street Journal (31 May 2011)Google Scholar <http://online.wsj.com/article/SB10001424052702304563104576355623135782718.html>.

18 cf, eg art 63 of the ICJ Statute, and art 37 of the Statute of the European Court of Justice, and the case-law thereunder.

19 The awards (dated 2001) in those cases are reported at the International Treaty Arbitration website: <http://italaw.com/>.

20 Case C-459/03 Commission of the European Communities v Ireland (2006) ECR I-5335.

21 cf, Bank Melli Iran v Council, Case C-548/09 P, 16 November 2011, para 100.

22 eg Ishikawa, T, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 ICLQ 373CrossRefGoogle Scholar.

23 See B Simma, ‘Foreign Investment Arbitration: A Place for Human Rights’ (2011) 61 ICLQ 573.

24 For example The Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) art 10(1) < http://www.encharter.org/fileadmin/user_upload/document/EN.pdf>.

25 SGS v Philippines ICSID Case No. ARB/02/6, art X(2), para 11.

26 SGS v Islamic Republic of Pakistan ICSID Case No ARB/01/13, paras 97, 332.

27 K Yannaca-Small, ‘Interpretation of the Umbrella Clause in Investment Agreements’ (Working Papers on International Investment number 2006/3 OECD, October 2006) available at <http://www.oecd.org/dataoecd/3/20/37579220.pdf> p 22.

28 Case 43–75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 455.

30 Lauterpacht (n 2).

31 The reference to ‘honour and vital interests’ comes from the Hague Conventions of 1899 and 1907, which separated out disputes involving such interests. The Conventions are published at the web site of the Permanent Court of Arbitration < http://www.pca-cpa.org/>.

32 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), ICJ Reports 2010, available at <http://www.icj-cij.org/docket/>.

33 See, eg arts 43 and 44 of the ICSID Arbitration Rules, <http://icsid.worldbank.org/ICSID/ICSID/RulesMain.jsp>.

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