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5 - Preliminary Rulings by the International Court of Justice at the Instance of National Courts

Published online by Cambridge University Press:  06 November 2009

Stephen M. Schwebel
Affiliation:
International Court of Justice
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Summary

As long ago as 1929, Dr. H. Lauterpacht wrote:

One may consider the possibility of a development in which the highest national tribunals will prefer to ask competent international tribunals, preferably the Permanent Court of International Justice, sitting in its full strength, for an opinion on difficult or unsettled questions of international law which do not involve national interests. In a more integrated stage of international organization – which is still far off – this request for an opinion might assume the form of leave to appeal against the decision of the national court on a point of international law. It is not unusual for inferior municipal courts to invite an appeal from their own decision on questions of legal interest on which the opinion of the highest organs of the judiciary is felt to be desirable. However, a formal application, emanating from the highest judicial authorities of the country and addressed to the Permanent Court, for a ruling on any important question of international law pending before the municipal court would constitute a less radical step. Such a procedure, being a voluntary one in form and substance, would derogate neither from the sovereignty of States nor from the authority of their highest tribunals; it would testify that these tribunals regard themselves as the organs of the international community when administering international law, and it would give the Permanent Court, whose main work consists at present in interpreting treaty provisions, the opportunity of developing international law in much needed directions.

Type
Chapter
Information
Justice in International Law
Selected Writings
, pp. 84 - 92
Publisher: Cambridge University Press
Print publication year: 1994

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