The Application of Teachings by the International Tribunal for the Law of the Sea

This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of International Dispute Settlement following peer review. The version of record Helmersen ST. The Application of Teachings by the International Tribunal for the Law of the Sea. Journal of International Dispute Settlement. 2020;11(1):20-46 is available online at: https://doi.org/10.1093/jnlids/idz024.Scholars have examined the role of ‘teachings’ (or ‘literature’, ‘doctrine’ or ‘scholarship’) in various international courts and tribunals, but never the International Tribunal for the Law of the Sea (ITLOS). This article analyses the general weight ITLOS judges assign to teachings, how the judges distinguish between more and less significant teachings, and how and why different judges use teachings differently. ITLOS judges generally seem to assign teachings low weight, albeit with some exceptions. Some teachings are seen as more important, on the basis of their quality and on the fact that multiple writers agree. Judges treat teachings somewhat differently, with Judge Laing being a significant outlier, responsible for roughly half of all citations

Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice

This is a pre-copyedited, author-produced PDF of an article accepted for publication in European Journal International Law following peer review. The version of record European Journal of International Law, Volume 30, Issue 2, May 2019, Pages 509– 535, https://doi.org/10.1093/ejil/chz031 is available online at: https://academic.oup.com/ejil/article/30/2/509/5536728.Article 38(1) of the Statute of the International Court of Justice (ICJ Statute) instructs the Court to ‘apply … the teachings of the most highly qualified publicists’. This raises the question of how to decide who these ‘publicists’ are and how to rank them. This article suggests four factors that the Court’s judges apparently use when assessing the weight of ‘teachings’: the quality of the work, the expertise and official positions of the author(s) and agreement between multiple authors. Judges may invoke these factors because it can make their opinions more authoritative and saves time, and in order to conform with Article 38 of the ICJ Statute. Counting the authors and teachings that judges have highlighted as having high quality, being experts and holding prestigious official positions provides a list that is different from the lists of writers who are cited most often and by the most judges. While this gives a rough idea of who ‘the most highly qualified publicists’ may be, it also shows that a final, conclusive ranking cannot be given

The use of force against neutral ships outside territorial waters

This article examines when states are allowed to use force against neutral merchant ships outside territorial waters. This is regulated by both international humanitarian law and the prohibition of the use of force, which apply concurrently to naval warfare. The prohibition of the use of force imposes narrower limits than international humanitarian law, in the sense that certain actions that have traditionally been permitted under international humanitarian law are contrary to the prohibition of the use of force. The prohibition of the use of force exempts uses of force based on UN Security Council resolutions, consent and self-defence. Where there is no UN Security Council resolution or consent, self-defence remains the only option, and self-defence does not give a right to direct the use of force towards third states or their ships. Therefore, the right to self-defence does not permit blockades outside territorial waters or visit and search operations that are not founded on specific suspicions against individual ships, even though such operations may be permitted under international humanitarian law. These conclusions are supported by an examination of state practice and opinio juris, where the few relevant instances that do exist have met with widespread protests from other states

Overview: Jurisdiction and Devolution Issues

In the 2012-2013 legal year, eight cases from the Supreme Court concerned jurisdiction and devolution issues. Three concerned the competencies of devolved legislatures, two the right to appeal from Scottish courts, and three the jurisdiction of English courts. (Note about the journal: The Cambridge International Law Journal (CILJ) succeeds the Cambridge Journal of International and Comparative Law (CJICL

Evolutive Treaty Interpretation: Legality, Semantics and Distinctions

According to the ICJ, ‘generic’ terms in long-term treaties were presumably intended to be interpreted evolutively. This ‘general rule’ on evolutive interpretation appears simple, but leaves unanswered questions. Moreover, linguistic analyses show that the ICJ is inconsistent in its definition of ‘generic’, and that evolutive interpretations are unsuited to solving ambiguity (as opposed to vagueness). There is, moreover, a tendency in the literature to confuse or conflate evolutive interpretation with the doctrine of intertemporality or the VCLT Article 31.3.c—these are three distinct concepts. https://ejls.eui.eu/issues/summer-2013-volume-6-issue-1

Dualismen i norsk rett som konstitusjonell norm

Den rådende oppfatningen i norsk rett er at folkerett må gjennomføres for å bli en bindende del av norsk rett (gjerne kalt «dualisme»). Noe som er mindre klart, er hvorvidt denne normen har konstitusjonell rang. Nøkkelord: dualisme, konstitusjonell sedvanerett, rettskildelære, statsforfatningsrett, folkeret

The Classification of Groups Belonging to a Party to an International Armed Conflict

It has been argued that groups of fighters who “belong” to a party to an international armed conflict without fulfilling the requirements of Article 4(A)(2) of Geneva Convention III should be classified as combatants, rather than as civilians. This article questions the reasoning put forward in support of that view, by showing that the arguments may be partly circular, incomplete, and debatable

The Use of Scholarship by the WTO Appellate Body

This article examines the use of scholarship by the WTO Appellate Body. While it is not possible to say definitively how the Appellate Body views the legal status of scholarship in WTO dispute settlement, its use of scholarship will in practice determine its status. The article identifies three overall trends: the Appellate Body's use of scholarship has declined, the Appellate Body uses scholarship mostly for matters of general international law (as opposed to WTO law), and the Appellate body has generally been careful in its use of scholarship. Possible explanations for these trends may include an increase in available precedents, the Appellate Body's specialized role, criticism of the Appellate Body, and its members' backgrounds