Transposing domestic approaches to the international level

Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

40. […] It is known omnibus lippis et tonsoribus that the international community lacks any central government with the attendant separation of powers and checks and balances. In particular, international courts, including the International Tribunal, do not make up a judicial branch of a central government. The international community primarily consists of sovereign States; each jealous of its own sovereign attributes and prerogatives, each insisting on its right to equality and demanding full respect, by all other States, for its domestic jurisdiction. Any international body must therefore take into account this basic structure of the international community. It follows from these various factors that international courts do not necessarily possess, vis-à-vis organs of sovereign States, the same powers which accrue to national courts in respect of the administrative, legislative and political organs of the State. Hence, the transposition onto the international community of legal institutions, constructs or approaches prevailing in national law may be a source of great confusion and misapprehension. In addition to causing opposition among States, it could end up blurring the distinctive features of international courts.

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Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

22. […] The Trial Chamber thus applied the so-called “ripeness doctrine” upheld by United States courts. Under this doctrine, a court should refrain from determining issues that are only hypothetical or speculative, or at any rate devoid of sufficient immediacy and reality as to warrant adjudication. It is well known that in the United States this doctrine is derived from the “case or controversy” clause of Article III of the United States Constitution and is intended to prevent courts from hearing complaints about agency action that has not yet injured the plaintiff[1]. The Appeals Chamber, with respect, determines that it is inappropriate to resort to this doctrine in these proceedings.

23. This conclusion rests on two grounds. First, whatever the merits of this doctrine, it appears to the Appeals Chamber to be inapposite to transpose it into international criminal proceedings. The Appeals Chamber holds that domestic judicial views or approaches should be handled with the greatest caution at the international level, lest one should fail to make due allowance for the unique characteristics of international criminal proceedings.

[1]           As held in Abbot Laboratories v. Gardner, 387 U.S. 136 (1967), by the United States Supreme Court, ripeness consists of a two-pronged test: first, are the issues fit for judicial review? Secondly, what hardship would the parties face if review is denied?

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