Emilia Justyna Powell

The International Court of Justice and the World's Three Legal Systems

This paper seeks to understand why some countries accept the jurisdiction of the International Court of Justice (ICJ) more readily than others. The theory focuses on institutional differences between the worlds major legal systems: civil law, common law, and Islamic law. Important characteristics of these legal systems (stare decisis, bona fides, pacta sunt servanda) are integrated in an expressive theory of adjudication, which focuses on how adjudication enhances interstate cooperation by correlating strategies, constructing focal points, and signaling information. The theory considers the ability of states to communicate with each other, using acceptance of ICJ jurisdiction as a form of cheap talk. Empirical analyses show (1) civil law states are more likely to accept the jurisdiction of the ICJ than common law or Islamic law states, (2) common law states place the greatest number of restrictions on their ICJ commitments, and (3) Islamic law states have the most durable commitments.

Past Experience, Quest for the Best Forum, and Peaceful Attempts to Resolve Territorial Disputes

Does a state’s past win/loss record affect its subsequent choices of peaceful dispute resolution methods in territorial disputes? We present a theory that portrays attempts at peaceful resolution as a strategic process, by which states search for the most favorable forum. During the process of decision making, a state strategically chooses between several methods of peaceful resolution; its final choice is based on the state’s past experience with this particular method. Empirical analysis of all attempts at peaceful resolution of territorial disputes from 1945 to 2003 shows that challenger states use their own record of victories and failures, as well as the win/ loss record of the target as indicators of the probability of winning in a subsequent dispute. This pattern is especially strong for the binding third-party methods, arbitration, and adjudication.

Legal Systems and Peaceful Attempts to Resolve Territorial Disputes

This paper focuses on how domestic legal systems influence states’ choices of peaceful dispute resolution methods. In order to increase familiarity with rules of peaceful resolution of disputes, states use their domestic legal systems to provide them with clues about the most trustworthy ways to settle disputes. States tend to choose methods of dispute resolution that are similar to those embedded in their domestic legal systems. Empirical analyses support the conjecture of a linkage between domestic law and interstate conflict management methods, showing that civil law dyads prefer more legalized dispute resolution methods compared to common law dyads. Islamic law dyads are most likely to use nonbinding third party methods, while common law dyads tend to resolve their territorial disputes through bilateral negotiations.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJs jurisdiction through bilateral treaties.

Strategic Selection: Political and Legal Mechanisms of Territorial Dispute Resolution

States involved in territorial disputes have several options with regard to resolving their disputes. What types of states are more likely to resort to legal methods of peaceful resolution in attempting to resolve their territorial disputes? We posit that two separate mechanisms affect states’ decisions to choose legal methods of peaceful resolution: the legal mechanism – domestic rule-of-law, and the political mechanism – win/loss record. Rule-of-law based arguments cannot fully explain states’ behavior towards arbitration and adjudication. It is the interplay of both of these mechanisms that explains the strategic choices made by states with regards to arbitration and adjudication. We explain why some high rule-of-law states return to binding methods, while others turn to different forums, and why low rule-of-law states consider binding methods. Empirical analyses of all attempts at peaceful resolution of territorial disputes from 1985 to 2006 show that high rule-of-law states are more likely to return to international binding venues only if they have a positive experience with these methods. On the other hand, we find that low rule-of-law states are not concerned with their record of successes/failures when resorting to international binding venues. Overall, the effect of regime type/rule-of-law is conditioned by past successes and failures in international resolution venues.

The Role of Domestic Opposition and International Justice Regimes in Peaceful Transitions of Power

This article considers how international criminal justice administered by the International Criminal Court (ICC) affects the possibility of negotiated, peaceful transitions of power in autocracies. We argue that a strong international criminal tribunal can deter dictators’ decisions to peacefully relinquish their power. It does so when the dictator in question has faced a relatively violent opposition, one that was ready to strike a deal with the dictator promising him amnesty in exchange for stepping down. Facing an opposition that “has skeletons in its closet,” the dictator will peacefully exit his office only under a weak ICC regime. We use a cross-national time-series data set spanning 1998 to 2007 to test our theory and find that under a weak ICC regime, the more skeletons the opposition has in its own closet, the more likely is the dictator to peacefully step down from office. Interestingly, this relationship holds, to a large extent, across various levels of dictator’s culpability. If the ICC is strong, the number of skeletons the opposition has in its closet has, for the most part, no effect on the dictator’s likelihood of stepping down.

Islamic law states and the International Court of Justice

The International Court of Justice (ICJ), as the principal judicial organ of the UN, plays an important role in peaceful resolution of international disputes. Traditionally, relations between Islamic law states, international law, and courts have been relatively tense due to the inherent link between Islamic law and the Islamic faith. Yet, several Islamic law states recognize the ICJ’s compulsory and compromissory jurisdiction. This article asks: Why do some Islamic law states extend support to the International Court of Justice, while others turn away from the Court? I argue and empirically demonstrate that specific characteristic of Islamic law can explain variation of Islamic law states’ preferences towards the ICJ. After providing original data on the characteristics of Islamic legal structures, I systematically compare pertinent rules of international law and Islamic law, focusing on similarities and differences between the two. Islamic law features such as respect for legal scholarship and peaceful resolution of disputes are compatible with principles embraced by the ICJ. Islamic law states that incorporate these norms are supportive of the Court. In contrast, Islamic law states that directly adopt sharia as the law of the land and incorporate sharia in their education systems are less open to the ICJ’s adjudication.

Domestic Law Goes Global: Legal Traditions and International Courts: Major legal traditions of the world

In this chapter, we lay the groundwork for our theoretical argument about the creation of new international courts and the expansion of state support for pre-existing courts by focusing on the characteristics of the three major domestic legal traditions in the world: civil law, common law, and Islamic law. We provide a brief historical account of the origins of these three legal families and we describe the major distinctions between them, including differences in the source of law, distinctions in the law of contracts, and variations in legal procedures (e.g. litigation). We then discuss how these features of domestic legal traditions influence foreign policy decision-making processes, especially as they impinge upon the creation of new international institutions and the signature and design of interstate commitments. We conclude by describing some of the convergences that have occurred over time between these legal families, especially between civil law and common law, and the significance of this temporal trend for our research. Introduction to legal systems Each state in the international system, as a political entity, possesses its own legal system, which is manifested at any point in history by a system of rules, norms, and principles. There are several definitions of the term “legal system.” Merryman (1985, 1) defines it as “an operating set of legal institutions, procedures, and rules.”

Domestic Law Goes Global: Legal Traditions and International Courts: References

1. The creation and expansion of international courts 2. Major legal traditions of the world 3. A rational legal design theory of international adjudication 4. Domestic legal traditions and the creation of the International Criminal Court 5. Domestic legal traditions and state support for the World Court 6. The rational design of state commitments to international courts 7. The consequences of support for international courts 8. Conclusion.