Justice in International Law: Further Selected Writings

386 Pages·2011·3.72 MB·English

by  Stephen M. Schwebel

This page intentionally left blank
Justice in
international law
in 1994 cambridge university Press published Justice in International
Law: Selected Writings of Judge Stephen M. Schwebel. This volume pub-
lishes his further selected writings: thirty-two of his essays and one book
review that may be of continuing interest. They derive from his years as a
judge and President of the international court of Justice, and his experi-
ence as an international arbitrator during and after those years.
The first part treats aspects of the performance and influence of the
international court of Justice. The second addresses aspects of inter-
national arbitration. The third deals with a miscellany of international
legal topics.
This collection does not include Judge schwebel’s judicial or arbi-
tral opinions, nor any of his official writings as a legal adviser of the
us Department of state or as a special rapporteur of the international
law commission of the united nations. nor does it include any of the
judgments to which he has contributed as a judge and President of the
administrative tribunals of the international Monetary Fund and
the world Bank. while the appended list of publications does list his
individual and dissenting opinions as a judge of the international court
of Justice, it does not list the many arbitral awards in whose rendering
he took part because those awards were not those of a sole arbitrator.
judge schwebel, a resident of washington, Dc and south
woodstock, Vermont, continues to act as an international arbitrator and
counselor.
stephen M. schwebel
Justice in

international law
Further selected writings of
stephen M. schwebel
Former Judge and President of the International Court of Justice
cambridge university press
cambridge, new York, Melbourne, Madrid, cape town,
singapore, são Paulo, Delhi, tokyo, Mexico city
cambridge university Press
The edinburgh Building, cambridge cB2 8ru, uK
Published in the united states of america by cambridge university Press, new York
www.cambridge.org
information on this title: www.cambridge.org/9781107005372
© stephen M. schwebel 2011
This publication is in copyright. subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of cambridge university Press.
First published 2011
Printed in the united Kingdom at the university Press, cambridge
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
schwebel, stephen M. (stephen Myron), 1929–
Justice in international law : further selected writings of stephen M. schwebel
p. cm.
includes bibliographical references and index.
isBn 978-1-107-00537-2 (hardback)
1. international courts. 2. international court of Justice.
3. arbitration, international. 4. international law. i. title.
KZ6250.s39 2011
341.5′5–dc22
2011006727
isBn 978-1-107-00537-2 Hardback
cambridge university Press has no responsibility for the persistence or
accuracy of urls for external or third-party internet websites referred to in
this publication, and does not guarantee that any content on such websites is,
or will remain, accurate or appropriate.
For our grandchildren
Benjamin, Georgina, James Johnson and casper

contents
part i International Court of Justice page 1
1 reflections on international adjudication 3
2 The impact of the international court of Justice 11
3 The politics of adjudication 21
4 national judges and judges ad hoc of the international
court of Justice 25
5 The roles of the security council and the international
court of Justice in the application of international
humanitarian law 41
6 The inter-active influence of the international court
of Justice and the international law commission 66
7 a site visit of the world court 95
8 The proliferation of international tribunals:
threat or promise? 101
9 The Gulf of Maine maritime boundary delimitation:
the constitution of the chamber 108
10 The judgment of the international court of Justice
in the case concerning the Gabčíkovo-Nagymaros Project
(Hungary/slovakia) 113
11 Gorbachev embraces compulsory jurisdiction 124
part ii International arbitration 13 5
12 a Bit about icsiD 137
13 The influence of bilateral investment treaties on
customary international law 146
vii
viii contents
14 The united states 2004 Model Bilateral investment
treaty: an exercise in the regressive development
of international law 152
15 The united states 2004 Model Bilateral investment
treaty and denial of justice in international law 161
16 anti-suit injunctions in international arbitration:
an overview 165
17 The law applicable in international arbitration:
application of public international law 173
18 The validity of an arbitral award rendered by a
truncated tribunal 182
19 The authority of a truncated tribunal 206
20 injunction of arbitral proceedings and truncation
of the tribunal 212
21 Public policy and arbitral procedure 220
22 The creation and operation of an international court
of arbitral awards 246
23 The Kingdom of saudi arabia and aramco arbitrate
the onassis agreement 255
24 The Southern Bluefin Tuna case 270
25 a celebration of the united nations new York
convention on the recognition and enforcement
of Foreign arbitral awards 276
26 Does the consent of the contracting Parties govern
the requirement of an “investment” as specified in
article 25 of the icsiD convention? 281
part iii Miscellaneous 28 7
27 May preparatory work be used to correct rather than
confirm the “clear” meaning of a treaty provision? 289
28 clean hands, principle 297
29 compound interest in international law 302