No longer a weak department of power? Reflections on the emergence of a new international judiciary

European Journal of International Law

Volumn 20, Issue 1, 2009, Pages 73-91

  Shany, Yuval ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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[No Author keywords available]

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EID: 65449131258     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn081     Document Type: Article

References (149)

1. Hamilton, 'The Federalist Papers No. 78: The Judiciary Department', Independent Journal (1788), 2.
2. UN GAOR Conference on International Organization, UN Doc 913/IV/1/ 74(1)(1945), at 393.
3. S. Rosenne, The Law and Practice of the International Court 1920-2005 (2006), i, at 30.
4. See, e.g., Kooijmans, "The ICJ: Where does it Stand?', in A.S. Muller et al. (eds), The International Court of Justice: Its Future Role After 50 Years (1996), at 411, 418 ('[i]n a Westphalian system which requires State consent to the Courts' jurisdiction or State acquiescence to compulsory jurisdiction, an adjudicative body can only play a limited role. The more sensitive the case is from a political perspective, the more the respondent will be inclined to resist the relevant clause on which the applicant relies as a ground for compulsory jurisdiction)
5. H. Lauterpacht, The Development of International Law by the International Court (1958) (reprinted in 1982), at 4 ('[i]t would be an exaggeration to assert that the Court has proven to be a significant instrument for maintaining international peace')
6. M.O. Hudson, International Tribunals Past and Future (1944), at 238-239 ([i]t would be difficult to say... that any of the cases threatened to become casus belli').
7. See, e.g., G. Scelle, II Précis de droit des gens: Principes et systématique (1934), at 10-12
8. Scelle, 'La phénomène juridique de déboulement fonctionnel', in W. Schätzel and H.-J. Schlochauer (eds), Rechtsfragen der Internationalen Organisation (1956), at 324.
9. For a discussion see Y. Shany, Regulating Jurisdictional Relations between National and International Courts (2007), at 2-7.
10. Benvenisti, 'Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts', 4 EJIL (1993) 159.
11. See, e.g., J. Coleman et al, The Oxford Handbook of Jurisprudence and Philosophy of Law (2004), at 34 ('[t]he primary responsibility of the judiciary is to apply the law... in accordance with the rules of evidence and proof')
12. A. Barak, The Judge in a Democracy (2006), at 37('the primary function of the judicial branch is to judge (in other words, to resolve disputes by determining the facts, interpreting the law, filling in gaps and/or developing the common law)').
13. See, e.g., W. Friedman, The Changing Structure of International Law (1964), at 141 ('the role of international courts and tribunals in the evolution of international law is still a modest one').
14. See also O. Schachter, International Law in Theory and Practice (1991), at 5-9, 227; M. Shaw International Law (6th edn, 2003), at 12.
15. For a discussion of the definition of the international rule of law see Kumm, 'International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model', 44 Virginia J Int'l L (2003)19, at 22.
16. For a discussion see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), at 4-7: Romano, 'The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent', 39 NYU J Int'l L & Politics (2007) 791.
17. See Protocol No. 11 to the European Convention on the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, 11 May 1994, ETS 155; Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2 Oct. 1997, OJ (1997) C340/173. Another example is the expansion and deepening of the jurisdiction of the GATT dispute settlement machinery after 1994 as a result of the establishment of the World Trade Organization (with its host of covered agreements) and the gradual increase in membership thereof.
18. The most dramatic illustration of this may be seen in the flood of cases which came to the ECtHR after the entry into force of the 11th Protocol to the Convention: While the ECtHR has received some 1000 cases in the fi rst 40 years of its existence, more than 40,000 applications were referred to the Court in 2007: Registry of the European Court of Human Rights, Annual Report 2007 (2008), at 146, available at: www.echr.coe.int/NR/rdonlyres/59F27500-FD1B-4FC5-8F3F-F289B4A03008/0/ Annual_Report_2007.pdf.
19. For a discussion see Shany, 'National Courts as International Actors: Jurisdictional Implications', Hebrew University International Law Hesearch Paper No. 22-08, available at: SSRN: http://ssrn.com/ abstract=1292056.
20. Friedman, supra note 9, at 61-62.
21. See, e.g., I.L. Claude Jr., Swords into Plowshares: The Problems and Progress of International Organization (4th edn, 1971), at 215-227
22. H. Lauterpacht, The Development of International Law by the Permanent Court of International Justice (1934), at 2-4.
23. See supra note 2.
24. See also Lauterpacht, supra note 4, at 3 ('the primary purpose of the International Court... lies in its function as one of the instruments for securing peace').
25. A. Zimmerman et al., The Statute of the International Court of Justice (2006), at 42-43
26. Rosenne, supra note 3, at i, 10-11
27. Lauterpacht, supra note 15, at 2-4.
28. See, e.g., T. Gill et al., Rosenne's The World Court: What it is and How it Works (6th edn, 2004), at 15-19.
29. See, e.g., Koskenniemi and Leino, 'Fragmentation of International Law? Postmodern Anxieties', 15 Leiden J Int'l L (2002) 553, at 576.
30. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) [1986] ICJ Rep 14.
31. A pplication of the Convention on the Prevention and Punishment of Genocide (Bosnia-Herzegovina v. Serbia), Judgment of 26 Feb. 2007, 46 ILM (2007) 188, available at: www.icj-cij.org/docket/files/91/13685.pdf.
32. Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory [2004] ICJ Rep 136.
33. See Abi-Saab, 'Fragmentation or Unification: Some Concluding Remarks', 31 NYU J Int'l L & Policy (1999) 919, at 922
34. Lauterpacht, supra note 15, at 166-172.
35. See, e.g., Oda, 'The Compulsory Jurisdiction of the International Court of Justice: A Myth?', 49 ICLQ (2000) 251, at 264
36. R. Falk, Reviving the World Court (1986), at 34.
37. In particular, one may note the important contribution of the PCIJ in facilitating the implementation of some sensitive provisions of the Versailles Peace Treaties relating to Polish-German relations, through a continuous process of judicial interpretation and performance monitoring.
38. See, e.g., Certain German Interests in Polish Upper Silesia (Germany v. Poland), PCIJ (Ser. A), No. 6 (1925)
39. Factory at Chorzów (Germany v. Poland), PCIJ (Ser. A), No. 9 (1927)
40. Rights of Minorities in Upper Silesia (Germany v Poland), PCIJ (Ser. A), No. 15 (1928)
41. German Settlers in Poland (Advisory Opinion), PCIJ (Ser. B), No. 6 (1923)
42. Acquisition of Polish Nationality (Advisory Opinion), PCIJ (Ser. B), No. 7 (1923)
43. Access to German Minority Schools in Upper Silesia (Advisory Opinion), PCIJ (Ser. A/B), No. 40 (1931)
44. Access to, or Anchorage in, the port of Danzig, of Polish War Vessels (Advisory Opinion), PCIJ (Ser. A/B), No. 43 (1931)
45. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory Opinion), PCIJ (Ser. A/B), No. 44 (1932).
46. In a similar vein, the ICJ distinguished itself in handling border delimitation cases. See, e.g., Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008
47. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 Oct. 2007
48. Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90
49. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002] ICJ Rep 625.
50. See Lauterpacht, supra note 16, at 3.
51. For an excellent survey of the increase in the number of international courts in the 1990s see Romano, 'The Proliferation of International Judicial Bodies: The Pieces of the Puzzle', 31 NYU J Int'l L & Policy (1999) 709.
52. For a survey of this development see Romano, supra note 10, at 808-816.
53. See Chinkin, 'Alternative Dispute Resolution under International Law', in M. Evans (ed.), Remedies in International Law: The Institutional Dilemma (1998), at 123, 126-127.
54. For a general discussion on the 'shadow of litigation' phenomenon see Mnookin and Kornhauser, 'Bargaining in the Shadow of the Law: The Case of Divorce', 88 Yale LJ (1979) 950.
55. See, e.g., Nowrot, 'Legal Consequences of Globalization: The Status of Non-Governmental Organizations under International Law', 6 Indiana J Global Legal Studies (1999) 579, at 633
56. Romano, supra note 27, at 742-745
57. Brilmayer, 'International Law in American Courts: A Modest Proposal', 100 Yale LJ (1991) 2277, at 2303.
58. This court was merged in 2008 with the African Court of Justice, leading to the establishment of the African Court of Justice and Human Rights: Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, available at: www.africa-union.org/root/au/Documents/ Treaties/text/Protocol%20on%20the%20Merged%20Court%20-%20EN.pdf.
59. See Rosenne, supra note 3, at i, 29-32.
60. For a discussion of the role of the ECJ in reconstructing the EC legal order see Weiler and Haltern, 'Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz-Kompotenz', in A.-M. Slaughter et al. (eds), The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in Its Social Context (1998), at 331, 339-340.
61. See also Stewart, 'U.S. Administrative Law: A Model for Global Administrative Lawr', 68 Law & Contemporary Problems (2005) 63, at 96 ('[t]he WTO Dispute Settlement Body (DSB) - and especially the Appellate Body - has increasingly defined its role as promoting the sound and consistent regulation of the international trade regime').
62. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, preambl-. ETS 5 ('[b]jeing resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration'); Rome Statute of the International Criminal Court, 17 July 1998, preamble, 2187 UNTS 90 ('[a]ffirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation').
63. See, e.g., ECHR, supra note 34, at Art. 38(1)(b) ('[the Court shall] place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto') (emphasis added).
64. See Koskenniemi and Leino, supra note 19, at 567, 573.
65. For a study ofthe differences in the legal international legal doctrines developed by international courts see Charney, 'Is International Law Threatened by Multiple International Tribunals?', 271 Recueil des cours (1998) 101.
66. Courts which serve legal regimes that put a high premium on preserving their internal coherence and stability tend to resist attempts by national courts to interpret and apply the norms that comprise part of the regime (out of fear that extensive involvement by national court may disrupt the regime's delicate equilibrium). See Shany, supra note 6, at 3 3-34, 150.
67. But other norm advancing courts tend to engage national courts, which they view as important parmers which can complement their task, and encourage them to contribute to the norm-advancement project. See ibid., at 28-29, 34-36.
68. See Shell, "Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization', 44 Duke LJ (1995) 829.
69. See Abi-Saab, supra note 23, at 925 ('[t]o each level of normative density, there corresponds a level of institutional density necessary to sustain the norms').
70. The effectiveness of the power of review exercised by international courts over the institutions of the regime in which they operate has been put into question, however. See, e.g., Kingsbury et al., "The Emergence of Global Administrative Law', 68 Law & Contemporary Problems (2005) 15, at 45.
71. See Case 39/72, Commission v. Italy [1973] ECR 101, at 115 ('[f]or a State unilaterally to break, according to its own conception of national interest, the equilibrium between advantages and obligations flowing from its adherence to the Community brings into question the equality of Member States before Community law and creates discrimination at the expense of their nationals').
72. For a recent discussion of the link between international criminal courts and reconciliation see Damaska, 'What is the Point of International Criminal Justice,', 83 Chicago-Kent L Rev (2008). 329.
73. See also R. Cryer et al., An Introduction to International Criminal Law and Procedure (2007), at 28 ('[s]ome of the most serious doubts that have been expressed about international criminal law relate to the claim that it promotes peace and reconciliation')
74. Broude, 'Between Pax Mercatoria and Pax Européa: How Trade Dispute Procedures Serve the EC's Regional Hegemony', in P.B. Stephen (ed.), Economics of European Union Law (2007), at 319.
75. See, e.g., App. No. 57950/00, Isayeva v Russia, ECtHR, Judgment of 24 Feb. 2005; App. No. 31821/96
76. Issa v. Turkey, ECtHR, judgment of 16 Nov. 2004.
77. See also Las Palmeras v. Colombia. Judgment of 6 Dec.. 2001, I/A CHR (Ser. C), No. 90.
78. See ICC Statute, Art, 6.
79. See Slaughter and Helfer, 'Why States Create International Tribunals: A Response to Professors Posner and Yoo', 93 California L Rev (2005) 899, at 946-951 (judges are operating within a set of legal, political, and discursive constraints).
80. See, e.g., App. No. 71412/01, Behrami v. France, ECtHR, Judgment of 2 May 2007 (holding that states involved in multinational operations in Kosovo are not responsible for human rights violations committed by the troops)
81. Banković v. Belgium, ECtHR, Judgment of 19 Dec. 2001 (holding that bombing operations conducted in the territory of a non-Convention country are not covered by the European Convention)
82. Legality of the Use of Force (Serbia and Montenegro v. Belgium) [2004] ICJ Rep. 279 (holding that Yugoslavia was not a party to the ICJ Statute in 1999 and could not consequently bring a claim against NATO member states); Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, 39 ILM (2000) 1257 (holding that there was no prima facie evidence implicating NATO service members in war crimes committed during the Kosovo campaign).
83. See, e.g., Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia) Order of 15 Oct. 2008
84. Armed Activity on the Territory of Congo (DRC v. Uganda) [2005] ICJ Rep 166
85. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), supra note 22
86. Oil Platforms (Iran v. US) [2003] ICJ Rep 161
87. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), supra note 20
88. Isayeva, supra note 44
89. Issa, supra note 44.
90. See, e.g., Ginsburg and McAdams, 'Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution', 45 William & Mary L Rev (2004) 1229, at 1327-1329.
91. See Zimmerman, supra note 17, at 110 (describing Nicaragua's inability to enforce an ICJ judgment against the US)
92. Leach, 'Implementation of the First ECHR Judgments Relating to Chechnya', EHRAC Submission (2007), available at: http://ejp.icj.org/IMG/EHRAC_submission.pdf (noting a number of deficiencies in Russia's compliance with ECtHR judgments relating to Chechnya).
93. For example, the recent Georgia v. Russia case was brought to the ICJ on the basis of Art. 22 of the CERD Convention (the compromissory clause); hence, the Court can address violations only of that specific convention. For criticism of the decision to base jurisdiction on such narrow grounds see Application of CERD, supra note 48, joint dissenting opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, and Skotnikov, at para. 9.
94. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia) Judgment of 26 Feb. 2007, at para 147 ('[the Court] has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict. That is so even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes').
95. For a comparable observation see Coleman and Doyle, 'Introduction: Expanding Norms, Lagging Compliance', in E.C. Luck and M.W. Doyle (eds), International Law and Organization(2004) 1, at 1 ('in many cases the explosion of international norms has not been accompanied by a complementary development of international institutions to monitor states' efforts to implement these norms, and to facilitate or to compel such compliance').
96. But even in the economic sphere, the record of compliance with decisions of the WTO dispute settlement mechanism appears to have been less than impeccable. See, e.g., Gantz, 'Dispute Settlement under the NAFTA and the WTO: Choice of Forum Opportunities and Risks for the NAFTA Parties', 14 American U Int'l L Rev (1999) 1025, at 1084.
97. See, e.g., Medellin v. Texas, 171 L Ed 2d 833 (2008)
98. Ex parte Medellin, 2008 Tex Crim App LEXIS 851 (2008)
99. Medellin v. Dretke, 128 S Ct 1346 (2008)
100. Medellin v. Dretke, 544 US 660 (2005).
101. See Zimmerman, supra note 17, at 1246 (discussing the dismal record of invoking UN Charter, Art. 94).
102. Council of Europe - Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights (2007), at 219.
103. See, e.g., J.M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2003), at 8-9
104. Viljoen and Louw, 'State Compliance with the Recommendations of the African Commission on Human and Peoples' Rights 1994-2004', 101 AJIL (2007) 1.
105. See, e.g., Al Skeini v. Secretary of State for Defence [2007] UKHL 26, [2008] AC 153
106. R (Al Jedda) v. Secretary of State for Defence [2007] QB 621
107. Secretary of State for the Home Dept v. JJ, [2007] UKHL 45, [2008] AC 385
108. HCJ 3239/02, Marab v. IDF Commander in Judea and Samaria, 57(2) PD 349
109. HCJ 3799/02, Adalah v. IDF Chief of Central Command, 45 ILM 491 (2006).
110. For a discussion see Shany, supra note 13.
111. For a discussion of possible motivations see Benvenisti, 'Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts', 102 AJIL (2008) 241.
112. Ibid., at 244.
113. See Medellin, 128 S Ct 1346, at 1356-1357.
114. See, e.g., Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270
115. Arrest Warrant of 11 April 2000 (DRC v. Belgium) [2002] ICJ Rep 3.
116. For a discussion see Shany, supra note 13.
117. For a discussion of possible motivations see Benvenisti, 'Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts', 102 AJIL (2008) 241.
118. Ibid., at 244.
119. See Medellin, 128 S Ct 1346, at 1356-1357.
120. See, e.g., Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270
121. Arrest Warrant of 11 April 2000 (DRC v. Belgium) [2002] ICJ Rep 3.
122. For a discussion of these issues see Shany, supra note 10, at 77-127
123. Abi-Saab, supra note 23, at 925-930.
124. See, e.g., Charney, supra note 35, at 371
125. Kingsbury, 'Is the Proliferation of International Courts and Tribunals a Systemic Problem?', 31 NYU J Int'l L & Policy (1999) 679.
126. See International Law Commission, 'Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law', UN Doc A/CN.4/L.682 (2006), at 249 ('the emergence of conflicting rules and overlapping legal regimes will undoubtedly create problems of coordination at the international level. But... no homogenous, hierarchical meta-system is realistically available to do away with such problems. International law will need to operate within an area where the demands of coherence and reasonable pluralism will point in different directions') (emphasis in original text).
127. Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council, ECJ Judgment of 3 Sept. 2008, available at: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML.
128. For an analogous observation see Krisch, 'The Pluralism of Global Administrative Law', 17 EJIL (2006) 247, at 275 ('with the disappearance of a clearly competent authority and the resulting fluidity of decisions, the clarity and stabilization of expectations that we usually expect from the law would be severely compromised').
129. For a parallel argument taken from the ADR literature see Menkel-Meadow, 'Whose Dispute is it Anyway?: A Philosophical and Democratic Defence of Settlement (in some cases)', 83 Georgia LJ (1995) 2663, at 2692.
130. See Chinkin, supra note 29, at 123-124.
131. See ibid., at 128-130
132. Romano, 'International Dispute Settlement', in D.M. Bodansky et al. (eds), Oxford Handbook of International Environmental Law (2007), at 1038.
133. For a discussion see Romano, 'International Courts and Tribunals: Price, Financing and Output', in S. Voigt et al. (eds), International Conflict Resolution - 23 Conferences on New Political Economy (Jahrbuch für neue Politische Ökonomie) (2006) at 189, 229-230.
134. See, e.g., J.A. Rabkin, Law Without Nations?: Why Constitutional Government Requires Sovereign States (2005), at 180
135. A. Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (1998), at 112.
136. See, e.g., Risse, 'Transnational Actors and World Politics', in W. Carlsnaes et al. (eds), Handbook of International Relations (2003), at 255, 269-270
137. J.H.H, Weiler, The Constitution of Europe (1999), at 77-86.
138. See, e.g., Mackenzie and Sands, 'International Courts and Tribunals and the Independence of the International Judge', 44 Harvard Int'l LJ (2003) 271, at 285.
139. Avena (Mexico v. US) [2004] ICJ Rep 12.
140. See also Sanchez-Llamas v. Oregon, 548 US 331, at 353-354 (2006) ('[i]f treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law "is emphatically the province and duty of the judicial department", headed by the "one supreme Court" established by the Constitution.... Nothing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts').
141. For the distinction between 'low politics' and 'high politics' see Weiler, 'The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement', 13 American Rev Int'l Arbitration (2002) 177, at 182.
142. See Application of CERD, supra note 48
143. Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for Advisory Opinion) (letter by UN Secretary General), available at: www.icj-cij.org/docket/files/141/14799.pdf
144. Aerial Herbicide Spraying (Ecuador v. Colombia) (application by Ecuador), available at: www.icj-cij.org/docket/files/138/14474.pdf.
145. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 18 Nov. 2008
146. Application of CERD, supra note 48
147. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Order of 16 July 2008, available at: www.icj-cij.org/docket/files/139/14639.pdf
148. Application of the Genocide Convention, supra note 21.
149. See, e.g., ICJ Practice Direction V, available at: www.icj-cij.org/ documents/index.php?p1=4&p2=4&p3=0> (setting 4 months as the default period for submitting written memorials to the Court).