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Dozen international judicial or quasi judicial

发布时间:2018-02-14
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Benedict Kingsbury notes that ‘in the past decade alone', over a dozen international judicial or quasi-judicial bodies have been established.[1]

Indeed, before 1990, only six permanent international courts existed. After the Cold war, more and more international jurisdictions have been created to face new international issues and to try to be more efficient by being specialized in new areas covered by international law. This multiplication is the proliferation of international courts and jurisdictions with different types of dispute settlement bodies. For instance, we have now international regional judicial and specialized tribunals, the International Court of Justice, ad hoc tribunals such as the international criminal for the former Yugoslavia, self-contained regime such as the World Trade Organization dispute settlement resolution and international administrative tribunals.

Nevertheless, this expansion is not coordinated and ‘while it has led to increasing uniformization of social life around the world, it has also led to its increasing fragmentation'[2].

The question arising is thus: is the proliferation of international courts and tribunals a problem?

On the one hand, the proliferation of international jurisdiction is an opportunity for the development of international law (I); but this development can be threat by the risk of fragmentation.

I. The proliferation of international courts and tribunals: an obvious development of the international legal system.

A. A more and more specialized international law to better face the new international issues.

After the Second World War, new jurisdictions were an answer to establish new mechanisms of pacific dispute settlement. Nowadays the development of international jurisdictions is a consequence of the extent of the international law itself. Present in more and more areas, international law is more and more precise and a need of specialized jurisdictions arises such as for environmental law or human rights law.

In a way, the proliferation leading to specialization helps to increase the resolution of disputes and thus helps international law to better function. Moreover, the proliferation of jurisdictions helps to reduce or even eliminate international domains which are outside any sphere of legal control by third entities. Therefore, the establishment of new jurisdictions improves efficiency.

Where the lack of a strictly hierarchical system can be seen as a problem, it is also possible to consider that international tribunals have therefore the opportunity to contribute collectively ideas that will be able to be incorporated into general international law. Consequently, the proliferation leads to the development of international law.

Actually it is thanks to the decisions of the national and regional tribunals that we can witness the development and application of international standards. In that way, we can consider that these courts are the agents for the unity of international law system and therefore are not a problem.

B. An help to see the international system as a true system of law

The theorist Charney sees fragmentation as a response to pluralist diversity that prevails on hierarchical alternatives.

“We should celebrate the increased number of forums for third party dispute settlement found in the Convention and other international agreements because it means that international third-party settlement procedures, especially adjudication and arbitration, are becoming more acceptable”.[3]

The consequence is this development is promoting the evolution of public international law and help to perceive it as a “true system of law”.[4]

While some authors are expressing that different decisions on the same subject matters can lead to fragmentation, it is important to underline that the different international tribunals actually share their views and there is coherence in their decisions. It would be wrong to deny that differences do not exist but most of the time, the different tribunals are engaged in the same dialectic. Thanks to the coherence, it really helps to see the international system as a real system united.

Nevertheless, these jurisdictions have interactions and there is still a possibility that they reach different decisions on the same subject matter. Then, we could wonder if this fragmentation is not a threat to the unit of the international system.

II...Counterbalanced by the risk of fragmentation

A. The proliferation as a threat to the unity of the international system

To be scared of the fragmentation of international law is to think that there is a threat for the unity of international law and so to think that international law is a unity.

The lack of a final appeal court in international law can rise problems. It is possible that courts develop different answers to a same international law problem, leading to fragmentation.

The main problem would then be a conflicting jurisprudence or contradictory decisions.

Moreover, if it is possible to choose between different courts, there is a risk of ‘forum shopping'. It means that the parties choose between all the jurisdictions and this choice is based on the opportunity regarding the judgment which will be held and in a way it is a manipulation of the criterions of the jurisdictional competence; the international law would become the instrument of the interests of the States.

It could be argue that the proliferation of international courts does not lead directly to the fragmentation of the international legal system but rather lead to the fragmentation of interpretation of its norms and then it prejudices the basic unity of the international order if we think the international legal system as united.

The recent diplomatic crisis because of the war of the US against Iraq illustrated the reality of an international law submitted to divergences of interpretation such as the use of force in international law.

An example of conflicting jurisdiction can be found in the Nicaragua Case decided in 1986 by the ICJ in comparison to the Tadic case decided by the appeal chamber of the ICTY. In Tadic, the question was whether the armed forces of the Bosnian Serbs were to be regarded as armed forced of the Federal Republic of Yugoslavia or of Bosnia and Herzegovina. The appeal chamber referred to the notion of control in the Nicaragua case. But the appeal chamber reviewed the finding of the ICJ so it overstepped its role. Nevertheless there are ten years separating the two cases so we could argue that it is not a conflict between jurisdictions but rather a development of international law. “The Tadic case is not one of conflicting jurisdiction but one of ultra vires jurisdiction”. [5]

In Loizidou v. Turkey, the European court of human rights was faced with questions concerning reservations to declarations accepting the compulsory jurisdiction of the Court. The reservation concerned the exclusion of acts having been committed in the “Turkish Republic Northern Cyprius”. The court found it was not compatible with the Statute and the case was criticized because it was consider to be in conflict with the ICJ jurisprudence which was giving a broad scope to the admissibility of reservations.

The examples showed that proliferation was accompanied by “a serious risk: namely loss of overall control.” [6]

Therefore, if we think the international system as a unified system, then it is possible to consider that the proliferation of new jurisdictions entails the danger of regarding the courts as ‘autonomous sub-systems, each equipped with its own judicial or controlling system'. [7]

B. A necessity to find some solutions?

If we envisage the proliferation of international courts and tribunals as a problem and as a threat for the unity of international law system, then we can think about some solutions.

First of all, if we apply the doctrine of unity of the international legal system, this means that each tribunal has an obligation to respect the general and special competence of the other judicial and quasi-judicial institutions which comprise the system, to recognize that it has an obligation, when rendering judgments, to take account of the case-law of other judicial institutions that have pronounced on the same subject.

This means a dialogue is necessary and even if practically it can be difficult to apply such a procedure, it would be interesting to establish it and in a way, it would help to reinforce the unity of the international law system.

Another possible solution would be to establish a real judicial hierarchy and therefore to rethink the international law system itself. The way to proceed would be to establish the international court of justice as the supreme court of the international order with the possibility to review the international judgments. Nevertheless, to institute such a hierarchy would be to not take in consideration that eventually the proliferation of international courts and tribunals is the answer to an indispensable need of the international system. Moreover the international society is still very decentralized and maybe it is better that way, to have a system not necessary hierarchical. Moreover, nothing indicates in the United Nations Charter that the International Court should be considered as the definitive interpret of international law.

A softer way to proceed could be to institute a kind of preliminary ruling as it already exists for the European Court of Justice.

Is the proliferation of international courts and tribunals a problem? It is always possible to argue in two opposite ways. When one will see the opportunity to better face new international issues thanks to the specialization, another will see the specialization as a compartmentalization of the different law areas preventing the dialogue between the jurisdictions. When one will consider that the proliferation helps to see the international law system as a true system of law, another will consider that it leads to fragmentation and destroy the unity of the system.

To conclude, as far as I am concerned, I reckon that the proliferation of the courts and tribunals is a real need for the international system and rather than threatening it, it develops it. I do think that specialization is a positive point and it helps the system to be strong and mature. Moreover I think that the problem of fragmentation is not that frequent and thus It might be exaggerating to consider it as the biggest threat of the international system.

  1. http://goliath.ecnext.com/coms2/gi_0199-2718346/Manual-on-International-Courts-and.html
  2. Fragmentation of international law: difficulties arising from the diversification and expansion of international law - http://untreaty.un.org/ilc/documentation/english/a_cn4_l702.pdf
  3. Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 90 AM. J. INT'L. L. 69, 73-75
  4. Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 90 AM. J. INT'L. L. 69, 73-75 (1996)
  5. Multiplication of international courts et tribunals and conflicting jurisdiction - problems and possible solutions Karin Oellers Frahm http://www.mpil.de/shared/data/pdf/pdfmpunyb/oellers_frahm_5.pdf
  6. http://journals.cambridge.org/action/displayFulltext?type=1&fid=287425&jid=LJL&volumeId=15&issueId=03&aid=287424
  7. The danger of fragmentation or unification of the international legal system and the international court of justice PIERRE-MARIE DUPUY - http://www.pict-pcti.org/publications/PICT_articles/JILP/Dupuy.pdf

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