19 mars 2017

OUVRAGE : M.N. Shaw, Rosenne's Law and Practice of the International Court: 1920-2015

Malcolm N. SHAW

The popularity of his monumental and definitive works established Shabtai Rosenne as the undisputed expert on the International Court of Justice’s law and practice of his time. Irrefutably the leading work on the court, previous editions of Rosenne’s Law and Practice of the International Court have influenced generations of legal scholars, practitioners, judges, and students alike. The Fifth Edition, by Malcolm N. Shaw, combines his expertise as both an academic and practitioner to bring this monumental resource up-to-date while retaining Rosenne’s distinctive voice, erudition, and rigorous objectives.


Note on Documents and Abbreviations

Volume I
Chapter 1. Introduction
I.1. The Political and the Legal in the Settlement of Disputes
I.2. Arbitration and Judicial Settlement Compared
I.3. The Dissolution of the Permanent Court
I.4. An Historical Appreciation
Chapter 2. The establishment and constitution of the Court
I.5. The Outbreak of the War
I.6. Early Inter-Allied Discussions
I.7. The Dumbarton Oaks Proposals
I.8. The Washington Committee of Jurists
I.9. The San Francisco Conference
I.10. The International Court of Justice – A New Court
I.11. The United Nations Preparatory Commission
I.12. The Opening of the New Court
I.13. The Functional Continuity of the Two Courts
I.14. Problems of Interpretation
I.15. Political Interpretation
I.16. Judicial Interpretation
I.17. State Practice
I.18. Travaux Préparatoires
I.19. Non-Judicial Precedents
I.20. Amending the Statute
Chapter 3. The political and institutional role of the Court
I.21. The Permanent Court and the League of Nations
I.22. The Court and the United Nations
I.23. Charter and Statute
I.24. The Court as a Principal Organ
I.25. The Court and the General Assembly
I.26. The Court and the Security Council
I.27. The Court as Principal Judicial Organ
I.28. The Court and Other Judicial Organs
I.29. The Organs and the Court
I.30. Litispendence, Political and Legal
I.31. The Specialized Agencies and the Court
I.32. The International Tribunal for the Law of the Sea
I.33. The Political Function of Judicial Settlement
I.34. The Judicial Role of the Court
I.35. The Attitudes of States towards Judicial Settlement
I.36. The Attitudes of States: The Western Attitude
I.37. The Attitudes of States: The Marxist-Socialist Attitude
I.38. The Synthesis
Chapter 4. The post-adjudication phase
I.39. The Character of the Post-Adjudication Phase
I.40. The Views of the Court
I.41. Underlying Characteristics of the Problem
I.42. The Obligation of Compliance
I.43. Compliance with Incidental and Interlocutory Decisions
I.44. Compliance with Final Decisions
I.45. Compliance through National Courts
I.46. The Consequences of Non-Compliance
I.47. The Role of Self-Help
I.48. Methods to Secure Compliance
I.49. A Comprehensive Example: The Corfu Channel Case
I.50. Compliance through United Nations Charter Machinery
I.51. The Role of the Security Council
I.52. The Role of Other Organs
I.53. Complaint of Iran’s Failure to Comply with Indication of Provisional Measures (1951)
I.54. The Arbitral Award of the King of Spain Case (1960–1963)
I.55. The Military and Paramilitary Activities in and against Nicaragua Case
I.56. The Frontier Dispute (Burkina Faso/Mali) Case
I.57. The Territorial Dispute (Libya/Chad) Case
I.58. An International Force and Judgment Enforcement
Chapter 5. Advisory opinions
I.59. The Experience of the League of Nations
I.60. Comparison of Covenant and Charter
I.61. The Principal Organs: The General Assembly
I.61A. Emergency Special Session
I.62. Reception of Advisory Opinions by the General Assembly
I.63. The Principal Organs: The Security Council
I.64. The Principal Organs: The Economic and Social Council (ECOSOC)
I.65. The Principal Organs: The Trusteeship Council
I.66. The Secretary-General
I.67. Other United Nations Organs
I.68. The Specialized Agencies
I.69. The Specialized Agencies: The International Labour Organization
I.70. The Specialized Agencies: World Health Organization
I.71. The Specialized Agencies: UNESCO
I.72. The Specialized Agencies: The International Maritime Organization
I.73. The Specialized Agencies: The World Bank
I.74. The International Atomic Energy Agency
I.75. The Request
Chapter 6. The members of the Court
I.76. Introductory
I.77. The Qualifications of Members of the Court
I.78. The Frequency of Elections
I.79. Nomination of Candidates
I.80. Withdrawal of Candidacies
I.81. The System of Election
I.82. Procedure in the General Assembly
I.83. Procedure in the Security Council
I.84. Meeting and Ballot
I.85. The Avoidance of a Deadlock
I.86. Elections to Fill Occasional Vacancies
I.87. Term of Office of Members of the Court
I.88. Appraisal of the Electoral System
I.89. The Solemn Declaration of a Member of the Court
I.90. The President and Vice-President
I.91. The Order of Precedence of the Members of the Court
I.92. Resignation of a Member of the Court
I.93. The Removal from Office of a Member of the Court
I.94. Incompatibilities
I.95. Attendance of Members of the Court and the Quorum
I.96. Chambers of the Court
I.97. Diplomatic Privileges and Immunities
Chapter 7. The registrar and the registry
I.98. The Registrar
I.99. Deputy-Registrar
I.100. Removal from Office
I.101. The Registry Staff
I.102. Privileges and Immunities
I.103. The Instructions for the Registry
I.104. The Court’s Publications
I.105. Relations with the Press
Chapter 8. Finance and administration
I.106. The League System
I.107. The Statute of 1945
I.108. The Court’s Expenditure
I.109. Unforeseen Expenditure
I.110. The Court’s Income
I.111. Salaries of the Members of the Court
I.112. The Revision of 1950
I.113. The Revision of 1961
I.114. The Revision of 1967
I.115. The Revision of 1971
I.116. The Revision of 1973
I.117. The Revision of 1976
I.118. The Revision of 1980
I.119. The Revision of 1985
I.120. The Revision of 1990
I.121. The Revision of 1993–1994
I.122. The Review of 1995
I.123. Education Grant
I.124. Relocation (Assignment) Grant
I.125. Members Retained to Finish a Case
I.126. Special Allowance of President and Vice-President
I.127. Judges ad hoc
I.128. Pensions of Members of the Court
I.129. The Pension Plan of 1946
I.130. The Revised Pension Plan of 1960
I.131. The Revised Pension Plan of 1963
I.132. The Revised Pension Plan of 1980
I.133. The Review of 1995
I.134. Financing the Pensions
I.135. The Registrar’s Salary
I.136. Registry Staff Salary
I.137. Tax Equalization – Staff Assessment
I.138. Travel and Subsistence Allowances
I.139. Witnesses and Experts
I.140. Appraisal of Budgetary Arrangements
I.141. The Registrar’s Pension
I.142. Registry Staff’s Pension
I.143. The Court’s Property
I.144. The Seat of the Court
I.145. Official Mail, Postal Services and Common Services
I.146. The Secretary-General’s Trust Fund
Volume II

Chapter 9. Jurisdiction and admissibility: general concepts
II.147. The Concept of Dispute: Justiciability and Jurisdiction
II.148. Jurisdiction and Competence
II.149. The Meaning of Jurisdiction
II.150. Mutuality and Reciprocity as Elements of Jurisdiction
II.151. Jurisdiction and Propriety
II.152. The Concept of Essential Parties
II.153. Jurisdiction and the Seisin of the Court
II.154. The Consensual Basis of Jurisdiction
II.155. The Expression of Consent
II.156. The Temporal Factor in Jurisdiction
II.157. Consent by Conduct
II.158. Withdrawal of Consent
II.159. Jurisdiction to Decide ex aequo et bono
II.160. The non ultra petita Rule
II.161. Jurisdiction over Incidental Matters
II.162. Jurisdiction to Control Proceedings
Chapter 10. Qualification to be a party in a case: jurisdiction ratione personae
II.163. Introductory
II.164. Members of the United Nations
II.165. Non-Members of the United Nations as Parties to the Statute
II.166. Consequences of Being a Party to the Statute
II.167. Withdrawal from the United Nations, Suspension of Rights of Membership and Expulsion
II.168. Access to the Court of States Not Parties to the Statute
II.169. Access to the Court of States Not Parties to the Statute: Security Council Resolution 9 (1946)
II.170. Access to the Court of States Not Parties to the Statute: Rules of Court, Articles 36 (1946) and 41 (1978)
II.171. Public International Organizations
II.172. International Non-Governmental Organizations
II.173. Individuals
Chapter 11. Treaties and conventions in force
II.174. Jurisdiction Ratione Materiae
II.175. The Special Agreement
II.176. The Compromissory Clause
II.177. General Treaties for the Pacific Settlement of Disputes
II.178. The Framework Agreement
II.179. Treaties Concluded before 1945: Statute, Article 37
II.180. Matters Provided for in the United Nations Charter: Statute Article 36 (1)
II.181. The General Theory of Forum Prorogatum
II.182. Forum Prorogatum: Early Developments
II.183. The Discussions of 1934–1936
II.184. The Time for Formal Agreement
II.185. Agreement by Successive Acts in the Proceedings
II.186. Agreement Reached in Course of Pleading
II.187. Tacit Consent
II.188. The State Organs Competent to Give Consent
II.189. Evaluation of Forum Prorogatum
Chapter 12. The compulsory jurisdiction (optional clause)
II.190. The Origins
II.191. The Statute: Article 36, Paragraphs 2 and 3
II.192. ‘Ipso Facto and without Special Agreement’
II.193. ‘States Parties’ and ‘Any Other State’
II.194. ‘Accepting the Same Obligation’
II.195. ‘Legal Disputes’
II.196. Declarations Made before 1945: Statute, Article 36 (5)
II.197. Form of Declaration
II.198. Deposit and Circulation of a Declaration: Statute, Article 36 (4)
II.199. Reciprocity: Statute, Article 36 (3)
II.200. Reservations and Conditions: Statute, Article 36 (3)
II.201. Objective Reservation of Domestic Jurisdiction: Charter Article 2 (7)
II.202. Subjective Reservation of Domestic Jurisdiction
II.203. Temporal Conditions: Terminology
II.204. Temporal Limitations
II.205. Application of Temporal Limitations
II.206. The Temporal Element of Jurisdiction Ratione Personae
II.207. Special Reservations
II.208. The War Exclusion Clause
II.209. Interpretation of Declarations
II.210. Modification, Amendment and Replacement of a Declaration
II.211. Denunciation of a Declaration
II.212. The Lex Specialis of the System of Compulsory Jurisdiction
II.213. Evaluation
Chapter 13. Matters of jurisdiction
II.214. The Importance of Matters of Jurisdiction
II.215. Jurisdiction as to the Jurisdiction
II.216. Meaning of ‘Dispute as to Jurisdiction’
II.217. The Consequences of Raising a Matter of Jurisdiction
II.218. Time for Raising a Matter of Jurisdiction
II.219. Preliminary Objections: Rules of 1926/1931, Article 38
II.220. Preliminary Objections: Rules of 1936/1946, Article 62
II.221. Preliminary Objections: The Change of 1972/1978/2000: 1978/2000 Rules, Article 79
II.222. The Isolation of Matters of Jurisdiction by the Court
II.223. The Isolation of Matters of Jurisdiction by the Parties
II.224. Suspension of Proceedings on the Merits
II.225. Successive Objections
II.226. Agreement of the Parties to Defer Objections
II.227. Priorities of Objections
II.228. Pre-Judicatory Proceedings
II.229. The Non-Exhaustive Character of Preliminary Objection Proceedings: Pleas in Bar
II.230. Distinction between Objection and Defence
II.231. Character of the Decision on Preliminary Objection
II.232. Disposal of Objections: Rules, Article 79 Paragraph 9
II.233. Matters of Jurisdiction Raised by the Court
Chapter 14. The title of jurisdiction
II.234. Meaning of the Term
II.235. Language
II.236. Validity in Time of the Title of Jurisdiction
II.237. The Retroactive Effect of a Title of Jurisdiction
II.238. Multiple Titles of Jurisdiction
II.239. Added Titles of Jurisdiction
II.240. Successive Titles of Jurisdiction
II.241. Termination of the Title of Jurisdiction
II.242. Registration under Charter, Article 102
Chapter 15. Advisory jurisdiction
II.243. General Concepts
II.244. ‘Any Legal Question’
II.245. ‘Arising within the Scope of [Its] Activities’
II.246. The Court’s Discretion
II.247. Discretion Based on the Court’s Judicial Character
II.248. Discretion Based on the Court’s Status as a Principal Organ
II.249. Jurisdiction in Special Advisory Proceedings
II.250. Judicial Interpretation of an Advisory Opinion
II.251. Revision of an Advisory Opinion
II.252. The Treatment of Preliminary Questions in Advisory Proceedings
II.253. Appraisal
Volume III

Chapter 16. Elements of international procedural law
III.254. The Basic Approach
III.255. The Statute and Rules of Court
III.256. The Function of the Proceedings
III.257. Evidence and the Burden of Proof
III.258. The Equality of the Parties
Chapter 17. The bench
III.259. Terminology
III.260. Ineligibility and Abstention of a Member of the Court in a Particular Case (Recusal)
III.261. The Composition of the Bench for a Particular Case
III.262. Chambers of the Court
III.263. Special Chambers
III.264. Ad hoc Chambers
III.265. The Chamber of Summary Procedure
III.266. The Concept of Judge ad hoc
III.267. The Right to Appoint a Judge ad hoc
III.268. Qualifications of Judge ad hoc
III.269. Parties in the Same Interest
III.270. The Problem of Imbalance
III.271. Non-Appointment of Judge ad hoc
III.272. Judge ad hoc in Intervention Cases
III.273. Judges ad hoc in Advisory Cases
III.274. The President of the Bench
III.275. Assessors
III.276. Experts Appointed by the Court
Chapter 18. The representation of the parties
III.277. The Agent
III.278. The Agent’s Functions
III.279. Time for the Appointment of the Agents
III.280. The Agent’s Address for Service
III.281. A Party’s Delegation
III.282. Counsel and Advocates
III.283. Experts of the Parties
III.284. Witnesses Called by a Party
III.285. Representatives in Advisory Cases
III.286. Representatives: Privileges and Immunities
Chapter 19. The institution of contentious proceedings
III.287. The Seising of the Court
III.288. The Requirement of Prior Diplomatic Negotiations
III.289. Requirement of Prior Attempt at Arbitration
III.290. The Exhaustion of Local Remedies
III.291. The Link of the Dispute with the Title of Jurisdiction
III.292. The Interest of the Applicant State
III.293. Methods of Instituting Proceedings
III.294. Notification of Institution of Proceedings
III.295. The Court’s General List
III.296. The Title of the Case
III.297. Notification of Special Agreement
III.298. Application Instituting Proceedings
III.299. The Relations of the Litigating States
III.300. Institution of Incidental and Derivative Proceedings
Chapter 20. The written proceedings and related matters
III.301. The President’s Consultations
III.302. Joinder of Cases and Hearing in Common
III.303. The Written Pleadings
III.304. Submissions in Written Pleadings
III.305. Counter-Claims
III.305A. Counter-Claims: The Court’s Law
III.306. Pleadings in Incidental Proceedings
III.307. Documents in Support
III.308. Affidavits and Declarations
III.309. The Language of Written Pleadings
III.310. Correction of Errors in a Pleading
III.311. Confidentiality of Written Pleadings
III.312. The Order of the Written Pleadings
III.312A. The Number of Written Pleadings
III.313. The Fixing of Time Limits
III.314. Case Ready for Hearing
III.315. New Documents: Rules, Article 56
III.316. Costs
Chapter 21. The oral proceedings
III.317. The Significance of the Oral Proceedings
III.318. Date of Oral Proceedings
III.319. Preparations in the Registry
III.320. The Hearing
III.321. Questions to the Parties
III.322. The Language of Oral Proceedings
III.323. Witnesses and Experts
III.324. Statute, Article 49: Obtaining Evidence by the Court
III.325. Experts Appointed by the Court: Statute, Article 50
III.326. Witnesses Called by the Court
III.327. Submission of Evidence by a Third State
III.328. The Final Submissions
III.329. The Closure of the Hearing
III.330. Evaluation of Procedure
Chapter 22. Proceedings in chambers
III.331. The Invocation of a Standing Chamber
III.332. The Invocation of an ad hoc Chamber
III.333. The Procedure in Chambers
III.334. The Judgment of a Chamber
Chapter 23. Non-appearance
III.335. Failure to Appear before the Court
III.336. Non-Appearance and Provisional Measures of Protection
III.337. Aspects of Procedure
III.338. The Resolution of the Institute of International Law
Chapter 24. Provisional measures of protection
III.339. Statute, Article 41
III.340. The Procedure
III.341. The Special Function of the President
III.342. The Time for the Request
III.343. Fresh Request
III.344. Urgency
III.345. The Duration of Provisional Measures
III.346. The Case Law
III.347. The Role of the Security Council
III.347A. Possible Misuse of Provisional Measures Procedure
Appendix to Chapter 24. Orders on Provisional Measures 

Chapter 25. Termination of proceedings
III.348. Rules, Articles 88 and 89
III.349. Removal from the General List
III.350. Termination of the Proceedings by the Parties Jointly
III.351. Termination of the Proceedings by the Applicant
III.352. Discontinuance of Preliminary Objection Proceedings
III.353. Discontinuance of Provisional Measures Proceedings
III.354. Removal from List by the Court
Chapter 26. Intervention by third states
III.355. Introduction: Statute, Articles 62 and 63
III.356. The Background
III.357. The San Francisco Conference
III.358. Interpretation of Articles 62 and 63
III.359. Rules of Court 1922 to 1972
III.360. Rules of Court (1978), Articles 81 to 86
III.361. The Application of the Rules
III.362. Jurisdiction Ratione Personae in Matters of Intervention
III.363. Jurisdiction Ratione Materiae in Matters of Intervention
III.364. The ‘Incidental’ Character of Intervention
III.365. The Link of Jurisdiction
III.366. The Non-Party Intervener
III.367. Intervention in ad hoc Chamber Proceedings
Chapter 27. The decision
III.368. The Court’s Decision-Making
III.369. The Deliberation
III.370. The Authoritative Text: The Court’s Bilingualism
III.371. The Secrecy of the Deliberations
III.372. Individual Opinions
III.373. The Judgment
III.374. The Judgment: The Operative Provisions
III.375. The Judgment: The Reasons in Point of Law: Statute Article 38
III.376. Statute, Article 38: General Principles of Law
III.377. Statute, Article 38, Paragraph 1 (d): Subsidiary Means – Generalities
III.378. Statute, Article 38, Paragraph 1 (d): Teachings of Publicists
III.379. Resolutions of the United Nations General Assembly
III.380. Decision ex aequo et bono
III.381. Orders
III.382. Other Decisions
III.383. Correction of Errors
III.384. Critique of Statements of Law
III.385. Statute: Article 59
III.386. ‘In Respect of That Particular Case’
III.387. Declaratory Judgments
III.388. The Protective Function of Article 59: The Non-Party State
III.389. Inadequacies of Article 59
III.390. Criticism of Application of Article 59
III.391. Statute, Article 60: The Res Judicata
III.392. The Judgment and Third Parties
III.393. Preliminary Objection Judgments and Later Phases
Chapter 28. Interpretation and revision of a judgment
III.394. General Observations
III.395. Interpretation: Statute, Article 60
III.396. ‘Final and without Appeal’
III.397. Revision: Statute, Article 61 and Rules, Article 99
Chapter 29. The court’s extrajudicial function
III.398. Nature of the Practice
III.399. International Agreements
III.400. Agreements between a Government and a Private Concern
III.401. Contracts between Private Concerns
III.402. Unilateral Invocation of the Extrajudicial Function
III.403. Evaluation
Chapter 30. Advisory proceedings
III.404. Statute, Articles 65 and 66; Rules of Court, Part IV
III.405. The Bench: Court and Chambers: Judges ad hoc
III.406. The Institution of Advisory Proceedings
III.407. Accompanying Documents
III.408. Right of Participation in Advisory Proceedings
III.409. Principal Features of the Advisory Procedure
III.410. Hearing in Common of Two Advisory Proceedings
III.411. Individuals
III.412. Provisional Measures in Advisory Proceedings
III.413. The Role of the Secretary-General
III.414. The Advisory Opinion
III.415. The Legal Effect of an Advisory Opinion
Appendix to Chapter 30: Participation of States in Advisory Proceedings 

Volume IV
The Composition of the Court
The Charter of the United Nations
The Statute of the Court
The Rules of Court 1978–2015
Practice Directions
Resolution Concerning the Internal Judicial Practice of the Court
Note for the Parties Concerning the Preparation of Pleadings
Secretary-General’s Trust Fund
Table of Cases
Index of Names
Articles of Charter Cited
Articles of Statute Cited
Articles of Rules of 1936/1946 Cited
Articles of Rules of 1978–2005 Cited
General Index  

Malcolm N. SHAW, Rosenne's Law and Practice of the International Court: 1920-2015, Leiden, Brill/Nijhoff, 2017 (1976 pp.)

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