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The International Court of Justice and the Judicial Function$
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Gleider I Hernández

Print publication date: 2014

Print ISBN-13: 9780199646630

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780199646630.001.0001

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The Essential Judicial Function and the International Legal System

The Essential Judicial Function and the International Legal System

Chapter:
(p.240) VIII The Essential Judicial Function and the International Legal System
Source:
The International Court of Justice and the Judicial Function
Author(s):

Gleider I Hernández

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199646630.003.0008

This Chapter reflects on the question of whether international law can be considered a true system. Examining in particular the question of whether ‘gaps’ exist within the international legal order, the Chapter first distinguishes true gaps (lacunae) from other purported deficiencies within the law. Turning then to the theory that international law has a complete legal order, the Chapter reviews the consequences of such a finding on the judicial function, and in particular, whether a prohibition on non liquet may be said to exist. Rejecting both general principles of law and the residual negative principle as applicable in the important Nuclear Weapons opinion, the Court has advanced an important claim as to the nature of international law that merits further reflection.

Keywords:   Completeness of international law, prohibition on non liquet, residual negative principle, determinacy of the law, gaps in legal systems, judicial function, nature of international law

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