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7 UCLA J. Int'l L. & Foreign Aff. 265 (2002-2003)
Changing the Premise of International Legal Remedies: The Unfounded Adoption of Assurances and Guarantees of Non-Repetition

handle is hein.journals/jilfa7 and id is 273 raw text is: CHANGING THE PREMISE OF INTERNATIONAL LEGAL REMEDIES: THE UNFOUNDED ADOPTION OF ASSURANCES AND GUARANTEES OF NON-REPETITION Scott M. Sullivan* Marbury v. Madison forever changed the way legal academics and practitioners viewed the powers of the U.S. federal judiciary. The International Court of Justice (ICJ), in its recent LaGrand decision, has challenged other international institutions as well as individual nations through a Marbury-esque unilateral declaration it hopes will similarly affect its power and efficacy in the context of international law and relations with states. This article examines the rise and ultimate ICJ acceptance of assurances and guarantees of non-repetition as a fundamental shift from well-established remedial norms of restitution and repair to a paradigm of prospective relief How does this change affect current notions of proper international action within the domestic realm? Further, what effects will this shift have on state action and legal legitimacy? After thorough analysis, the article contends that the unfounded acceptance of this new prospective relief taints both international in- stitutions and legal principles. The presence of this taint-coupled with the serious legal and political implications of the implementation of this potentially harsh prospective remedy-impedes rather than fa- cilitates the progression and efficacy of international law. INTRODUCTION ...................................................... 266 1. THE HISTORY AND SIGNIFICANCE OF ASSURANCES AND GUARANTEES OF NON-REPETITION .......................... 268 * LL.M., European University Institute, 2002; J.D. University of Chicago, 2001. 1 would like to thank Professor Jack Goldsmith at the University of Chicago, Professor Philip Alston of NYU and the EUI, and Professor Pierre-Marie Dupuy of the EUI, and Margaret Herster for their remarks and assistance. Any remaining mistakes are solely my own.