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Hastings International and Comparative Law Review

Abstract

When nations fail to observe their international obligations it undermines both respect for and future compliance with international law. In the so-called vicious cycle, the more the law is flouted, the less legitimate it becomes and the less states and individuals feel bound by it. The United States Supreme Court in Medellin recently exemplified this vicious cycle by spurning the authority of the International Court of Justice ("ICJ") and holding that a decision of the ICJ is not self-executing and thus does not constitute binding federal law. In contrast, the Court of Justice of the European Communities (formerly known as the European Court of Justice, or "ECJ") has, over the past fifty years, succeeded in transforming the essentially international law of the treaties into directly applicable law and, perhaps more importantly, law that is, in the event of a conflict, supreme over the national laws of the member states. This occurred in large part via the preliminary reference procedure. This paper argues that the ICJ may achieve a similar transformation via an expansion of the advisory opinion system. However, even if the political will to reinvent the ICJ never manifests itself, the preliminary reference system could and should be incorporated into future adjudicatory regimes. The European experience may not be able to fix the current system, but it clearly can provide a model for future systems.

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