The Top 10 list of ILDC cases
By tracking searches and downloads, OUP has compiled a top 10 list of the most consulted ILDC cases. The list is worth examining as it illustrates the diversity of domestic case-law on questions of international law. This is true in terms of regional coverage—only the continents of Australia and Latin America are missing (although there are many cases from those regions which in terms of substantive relevance would have deserved a place). There is also diversity in terms of substantive coverage—the list illustrates that domestic courts engage with international law across issue-areas. And certainly diversity also exists in terms of the particular domestic legal constellations, which means that the reception of international law in one state cannot readily be compared with its reception in a different state. It is precisely at the interface between international and domestic law that much of the reality of international law lies, and this is the significance of ILDC.
Tracking data on usage of ILDC cannot expose why users consult particular cases. However, a few tentative thoughts can be given as to what makes the cases in the top 10 list particularly interesting, and why practitioners and scholars may find it useful to refer to them.
That this case makes the top 10 list should come as no surprise. It is a standard citation for every discussion on the right to self-determination in international law. The judgment illustrates that domestic courts can explain the state of international law in a way that does not compare unfavourably with many international courts. Briefed by leading international law experts, the court explains with confidence the state of international law in this area. The part that made the case particularly famous is the court’s statement that ‘it is possible’ that a unilateral right of secession (‘external self-determination’) can arise in cases where a people is blocked from the meaningful exercise of its right to internal self-determination. It is noteworthy that the court’s careful reference to a ‘possibility’ is often omitted when proponents of the right of unilateral secession refer to the case. But nonetheless the judgment is a striking example of how a single domestic decision can influence a debate in (judicial) practice and scholarship. For domestic courts with the ambition to contribute to the development of international law (see also the cases numbered 5 and 6 of this list), this case should be a lasting inspiration.This case, concerning the occupation of Latvia by the USSR in WWII, is much less well known, but it is highly relevant to topical questions around the world. The judgment provides a convenient source of reference for those who look for authority for the proposition that consent to deployment of foreign troops is invalid when it is given after a military threat. The judgment is even more relevant as supporting authority for the principle that unlawful acts do not create rights, and that annexation carried out as a result of an unlawful use of force cannot enjoy international legality. This provides a relevant prism for assessing the current and future situation in the Crimea. There is much in the judgment that raises questions, and the reporter’s analysis does a good job of articulating them. But such common deficiencies in domestic judgments on matters of international law (which we also find in international judgments) do not necessarily preclude sound holdings and important contributions to international law on other points.3. Notice on the relevant issues concerning the acceptance by the People's Courts of civil cases involving privileges and immunities (ILDC 2756 (CN 2007))This is a somewhat unlikely candidate in a top 10 list of cases, as it is not actually a judgment. However, the mere fact that this document was issued by a Chinese court justifies its inclusion both in ILDC and on this list. Strenuous efforts by the ILDC editors to populate ILDC with many more Chinese cases have been rather unsuccessful, and in that situation any authoritative statements of Chinese courts are highly relevant. The Notice is of topical interest because in the wake of the Philippines-China PCA arbitration, some have doubted the willingness of China to implement its international obligations. It illustrates that China takes its international obligations seriously, and that its courts have an essential role to play in the performance of those obligations. The Notice essentially aims to secure a better protection of privileges and immunities in China. It issues a directive to all lower courts, requiring them to report all cases involving parties enjoying privileges and immunities to the Supreme People’s Court before accepting any such case for adjudication. While nothing is said on what the SPC’s interpretation might be, and little case-law has been reported on that interpretation, the Notice leaves little doubt that the main result is that the courts have to make sure that China can fulfill its international obligations.4. Agent Orange Product Liability Litigation, Re, Vietnam Association For Victims Of Agent Orange/Dioxin and ors v Dow Chemical Company and ors (ILDC 23 (US 2005))No other state has more cases in ILDC than the United States—a remarkable fact given the popular wisdom that US courts are not receptive to international law. But many of the US cases do not necessarily facilitate the application of international law. The Agent Orange case really stands out for one proposition: the court could not find any basis for declaring that the US military use of herbicides from 1961 to 1971 in Vietnam violated the international obligations of the United States. The finding displays a remarkable disconnect between moral outrage over the use of ‘agent orange’ and legal analysis. The outcome may, however, be in line with a few general trends that emerge when one reads through the US case-law. One is that the courts find it easier to hold that an act is not unlawful under international law than to find that the act is unlawful under international law. Another is that the US has been able to immunize itself to a significant extent from successful international law claims—whether by simply not signing up to treaties or by declaring treaties to be not self-executing, or by maintaining a wide variety of avoidance techniques. None of this is unique to the United States—the general point is that domestic judicial practice is not just about facilitating effective performance, but also about avoiding or even contesting international law. That, too, is the reality of international law.This is another judgment that has been of much interest to international lawyers. It is one of the cases leading up to the ICJ judgment in Germany v Italy. The case stands out for its explicit ambition to engage in the progressive development of international law. The Court of Cassation upheld the principle established by its earlier 2004 precedent in the Ferrini case: the operation of the rule on state immunity from civil jurisdiction may in certain cases give rise to a conflict with fundamental rights that has to be resolved in favour of the latter. The Court was aware that it was largely on its own, not being able to rely on much more than the joint dissenting opinion attached to the Al-Adsani decision of the ECtHR. It justified the holding expressly as a contribution to the emergence of a rule of international law. It seems that even the judgment of the ICJ in Germany v Italy has not been able to forestall that ambition. The case thus presents the role of domestic courts in the familiar dilemma of conflict between non-compliance with and development of international law. Surely, against the background of the ICJ judgment, the decision is in breach of the international obligations of Italy—but can it be excluded that in due course it will be seen as a pivotal contribution to change?6. Kenya section of the International Commission of Jurists v Attorney General and Minister of State for Provincial Administration and Internal Security and Kenyans for Justice and Development Trust (ILDC 1804 (KE 2011))This is yet another case on a question of a topic of much interest: the obligations of states to cooperate with the International Criminal Court, in particular in the arrest of persons indicted by the ICC. The court made a few quite bold statements: with the Quebec case at number 1 and the Mantelli case at number 5, that is a recurring element in the top 10 list. The court stated that obligations under the Rome Statute were customary international law and that as a state party to the Rome Statute, Kenya was under an obligation to prosecute those who had committed crimes under the Statute—a matter not at all as clear as the court suggested. The court also held that the doctrine of universal jurisdiction was a ius cogens obligation under international law and that therefore states were authorized to arrest and prosecute persons engaged in international crimes, regardless of their status, if they had committed a crime under the Rome Statute—an issue that is equally rather controversial. It is difficult to assess whether the court believed this to be the law or whether, like the Mantelli case, it intended to contribute to the development of the law—but it sought to expand its influence by hiding this intention. The fact that the case is among those most cited may well indicate that the judgment is finding its way into citations and may be a part of the development of international law. Whether that is a desirable development is another matter.7. Rabindra Prasad Dhakal and Advocate Rajendra Prasad Dhakal and ors v Nepal and ors (ILDC 756 (NP 2007))The practice of Nepalese courts does not populate a significant part of ILDC. That may be due to the dualistic nature of the legal system as regards the reception of international law. But this extremely interesting case shows that the dualism-monism distinction is not very helpful in explaining or understanding the practice of domestic courts. While the effect that the court eventually gave to international law was based on an express provision in domestic law, the case illustrates that this in no way precludes the possibility and relevance of its treatment of international law. In substance, the case stands out for the fact that the court found that the Nepalese legal framework concerning the protection of persons from enforced disappearance was not sufficiently effective, and therefore it directed the government to take prompt initiatives to enact effective laws dealing with the problem. The case is also of interest because the court relied on judicial practice from India and the European and Inter- American regional human rights courts in articulating the obligation of the government of Nepal to provide compensation to relatives—indicating that many international courts now view themselves as part of some global judicial network.8. Netherlands, Ministry of the Interior and Kingdom Relations and De Staatkundig Gereformeerde Partij v Stichting Proefprocessenfonds Clara Wichmann and ors ILDC 1632 (NL 2010))In this case the Netherlands Supreme Court engaged in a difficult balance between various human rights. It eventually came to the conclusion that in view of the Convention on the Elimination of Discrimination against Women, a political party could not exclude women from passive voting rights. The way the balance was struck was highly context-specific (note that in the Netherlands, this judgment was contradicted by a judgment of the highest administrative court). However, the case is particularly interesting for showing the actual power of a court to use international law to force a decision on an issue that the political branches had been unable to settle. Much of ILDC is ultimately about the relations between the courts on the one hand and the political branches on the other, and about the role that international law can play in mediating such relations. The possible impact of such a decision on the interpretation or development of international law can then be an often unintended side-effect.9. A and B v Government of the Canton of Zurich, Appeal against a Regulation of 15 September 1999 adopted by the Canton of Zurich on the Tuition at Schools of Higher Education (ILDC 350 (CH 2000))This is certainly the most low politics case in the top 10 list. It concerns the ostensibly mundane issue of whether a person could rely on provisions of the International Covenant on Economic, Social and Cultural Rights in a Swiss court to oppose the introduction of new fees for a technical school. Compared to the cases on Quebec, the occupation of Latvia, and the Vietnam War, this is a rather prosaic topic. However, beyond these facts the case has a wider relevance. The court had to answer the question of whether or not a provision of the IESCR was self-executing. Thereby the case illustrates how the drafting of particular treaty provisions can determine their domestic effect. Given that drafting is (partly) in the hands of the executive, the case is also another example of how international law shapes the relations between the political branches that bind a state to treaties, on the one hand, and the power of the courts, on the other.10. Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and ors (ILDC 597 (IL 2006))The list closes with another high profile case, which addresses the question of whether targeted killings are lawful under international law. Apart from all the substantive aspects of the case, and aside from the obviously complex political nature of the relation between the court and the Israeli political branches, the case is particularly notable for its very extensive use of international legal materials, including scholarly literature, and the overall quality of its legal reasoning. Domestic court judgments are often critiqued for their lack of quality of reasoning and use of sources. While ILDC certainly includes cases for which that critique holds, this is not one of them. The court engages with a wide range of legal materials before coming to conclusions on such questions as the existence of a situation of armed conflict between Israel and Palestinian organizations; the coexistence of international humanitarian law and human rights law; and direct participation in hostilities. The analysis of legal materials and the quality of the legal reasoning compares favourably to that of many international courts.
All in all, the top 10 list comprises a wide-ranging collection of cases in terms of substance and relevance. It is precisely that wide divergence that first justified the efforts to set up ILDC, and that should spur its continued development and use in the future.
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