Procedures In International Law

Procedures in International Law Gernot Biehler Procedures in International Law Dr. Gernot Biehler University of Dublin School of Law 39 Trinity College Dublin 2 Ireland [email protected] ISBN 978-3-540-74497-9 e-ISBN 978-3-540-74499-3 DOI: 10.1007/978-3-540-74499-3 Library of Congress Control Number: 2008934037 © 2008 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, roadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover Design: WMX Design GmbH, Heidelberg, Germany Printed on acid-free paper 5 4 3 2 1 springer.com Preface Legal procedures determine what the law is and what may be possibly enforced. Normally left to the practitioners their role particularly in the field of the grey zones of international law merits closer attention. This book introduces a procedural perspective to better deal with the often inchoate nature of international law both in practice and doctrine. International private law or the conflict of laws have probably rendered the greatest service to an understanding of procedural as opposed to substantive law due to the precedence on the lex loci proceduralis over any foreign lex causae. To better deal with “Italian Torpedoes” and other inconsistencies of the international judicial system an overview of the different bases of national jurisdictions is provided in Chapter 4.5. which is possibly the first of its kind. It can give a first orientation to the practitioner in international litigation and inform doctrine. Jurisdiction and other procedural issues may only be fully appreciated when international law both public and private may shed its light on the varied legal procedures generating international law both nationally and internationally. I am nevertheless all too conscious of the incompleteness of this attempt to establish a genuine procedural perspective in international law. Challenging to the reader, I only hope that any deficiencies in this attempt will prove useful in illustrating the need for further detailed studies on the issue, if I may be so fortunate to take part in such endeavours or not be so privileged to do so again. I feel particularly indebted to three great scholars; the late Professor F. A. Mann, Lord Justice Lawrence Collins and Professor Andreas Lowenfeld of New York University for giving credibility to a comprehensive understanding of all international law both public and private without which the i