UBC Theses and Dissertations

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UBC Theses and Dissertations

The jurisprudence of the International Court of Justice : customary international law; state sovereignty; and the domestic jurisdiction Dogra, H.K.


Purpose and Limits of the Present Study. International litigation is primarily concerned with finding a solution for the conflicting and contradictory claims of the disputant states who have different notions of justice for their acts and omissions at the international level. This problem becomes more acute when one party asserts its right against the other, and, in the absence of any treaty or convention, tries to establish and prove the existence of such right, on the basis of long usage, practice or custom, recognized as such by the civilized nations of the international community. The International Court of Justice, like its predecessor, the Permanent Court of International Justice, had to face those problems in a number of cases brought before it, and it succeeded, to a great extent, in solving those complicated problems, and, by crystallizing those rudimentary rules of customary law, which in the past had been a source of confusion for the international jurists, has made important contributions to the development of international law. It is the purpose of the present study to analyze the jurisprudence of the Court and, to find those principles of customary international law that the Court has applied for arriving at a particular decision. The approach is basically expository, and is confined to scrutinize that volume of authority, which the Court has produced on "international custom, as evidence of a general practice accepted as law."¹ Within this limited range it was thought desirable not to ignore the fundamental questions relating to state sovereignty and "domestic jurisdiction", which present-' various problems in international adjudication. Since the object of the present thesis is to extract, assemble, and evaluate the nature of those principles which the Court enunciated in its Judgments, it was found necessary to draw upon the individual opinions of the dissenting Judges, or, the separate opinions of those who concurred in the operative part of the Judgment, but, gave different reasons for arriving at the same conclusion, because it has been said that: "A dissent in a court of last resort is an appeal to the broadening spirit of the law, to the intelligence of a future day where a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”¹ 1 Art. 38 (1) (b) of the Statute of the Court. 1 Charles Evans Hughes, U.S. Supreme Court 68 (1928) (quoted by Runz, "The Nottebohm Judgment (second phase)," 514 AJIL (I960), p.. 539; see however, Lauterpacht, The Development of International Law by the International Court of Justice, Stevens, London, 1958, pp. 66-7).

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