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Dr. James Devaney is Senior Lecturer and a 2023-2024 re:constitution fellow. His roles at Glasgow include co-research coordinator for GCILS and programme convenor for the LLM in International law. He is also a Member of the Bar of the State of New York, and has advised states in proceedings before the International Court of Justice.

His research interests relate primarily to international courts and tribunals and legal reasoning, although he has published on a range of areas of international law. His current re:constitution project relates to EU sanctions on Russia, norm collision and the international rule of law.

Below is a list of key publications. For a full list please click on the following links:

University of Glasgow Profile

0000-0002-7226-6380

Publications

Introduction to the symposium on incidental jurisdiction

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The doctrine of incidental jurisdiction has had significant bearing on some of the most important international legal disputes of recent times, challenging one of the truths that international lawyers hold to be self-evident: that the jurisdiction of international courts and tribunals is dependent on the consent of states. But what exactly is this doctrine and why does it deserve to be the focus of this symposium? The doctrine of incidental jurisdiction allows tribunals to bring within their jurisdiction “incidental” or “ancillary” issues that are crucial to answering the question over which the tribunal certainly does have jurisdiction. It is a useful device that in certain, limited situations allows international courts and tribunals to consider legal questions that are beyond the jurisdiction to which states formally consent.

The role of precedent in the jurisprudence of the International Court of Justice: a constructive interpretation

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In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future. This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.

The role of science and expert evidence in the ICJ’s Silala judgment: how Bolivia’s incoherent claims ran up against reality

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The International Court of Justice (ICJ)’s 2022 Silala judgment is surely one of the most curious that the Court has ever handed down. The judgment represents perhaps the first time ever that the Court has decided that the claims of one of the parties, in this case Bolivia, had changed so much over the course of proceedings that ultimately all but one claim and one counter-claim were without object. Leaving aside this curious fact, in this short piece I would like to focus on the role of science and expert evidence in bringing about this curious conclusion of proceedings. After some preliminary thoughts which situate my analysis of the Silala dispute (section 2), in I will map out how Bolivia’s claims changed over time and speculate as to the role that experts played in this evolution (section 3). I am going to suggest that Bolivia’s retreat from its original position was precipitated by expert evidence which showed that it would not be able to demonstrate that its factual claims were ‘sufficiently well-founded’ to meet the Court’s standard of proof. I am also going to suggest that the role of expert evidence in forcing Bolivia to alter its claims can most helpfully be explained in terms of factual coherence (section 4). I will finish with some more general reflections, including the suggestion that this case contains a broader lesson, one that has implications beyond this particular dispute. This is that while parties are free to make whichever factual claims they (or perhaps more accurately their governments) wish to, only coherent claims have any chance of meeting the Court’s standard of proof, and ultimately of persuading the Court to rule in that party’s favour.

A coherence framework for fact-finding before the International Court of Justice

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It is the task of the International Court of Justice to establish the operative facts from which to draw normative conclusions in all contentious cases that come before it. This task, however, is complicated where those facts necessitate engagement with specialized epistemic fields other than law such as science. Drawing on legal theory and epistemology I propose a coherence framework for the establishment of the facts in such cases. In essence, this means that the Court need not show that its factual determinations have been established beyond all doubt, nor even that they satisfy a certain standard of probability. Rather, what the Court must show is that a factual determination it has made has been arrived at through a rational process and that it is coherent. The coherence framework also has both descriptive and normative value as it both maps neatly on to the current (best) practice of the Court and provides a justification for why it should operate this way in the future.

Leaning from the steep slope; on coherence in response to Professor Jean d’Aspremont

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Response to D’Aspremont, J. (2023). The chivalric pursuit of coherence in international law. Leiden Journal of International Law, 1-8. doi:10.1017/S0922156523000481

In re Arbitration between the Italian Republic and the Republic of India concerning the ‘Enrica Lexie’ incident

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On May 21, 2020, a Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award regarding the 2012 Enrica Lexie incident, which involved the death of two Indian fishermen at the hands of Italian Marines. The Award is lengthy and wide-ranging, finding that: (1) Italy and India had concurrent jurisdiction over the incident; (2) the Tribunal had incidental jurisdiction to determine the immunity of the Italian Marines; (3) the Marines enjoyed immunity as state officials; but nevertheless that (4) India was entitled to compensation for the loss of life, physical harm, damage to property, and moral harm. The Award has been received more positively by Italy than India, but neither party has indicated that they intend to do anything other than comply with it.