On Proliferation of International Courts and Tribunals

Question:

「We shouldnbe less concerned about fragmentation and overlaps of jurisdiction betweenninternational courts, and devote our attention instead to addressing gaps innthe coverage of international judicial bodies – for example, the need to expandnthe compulsory jurisdiction of the International Court of Justice or tonestablish new global tribunals on human rights and on environmental disputes.」

Discuss

Answer:n

Thenend of last century has witnessed a proliferation of international courts andntribunals (ICTs).[1]nConsidering potential risks caused by this phenomenon, some have raised concernsnabout fragmentation of international law and have advocated the need fornenhancing judicial integration,[2]nwith methods ranging from imposing a hierarchy between ICTs, allowing the ICJnto issue advisory opinions on contentious issues from other ICTs, to informalnmeasures, such as increasing dialogues between ICTs and strengthening the rolenof the ICJ.[3]nOthers like the statement in question, however, hold an optimistic attitude andnsuggest that the integrity of international legal system has not been impairednby the proliferation of ICTs.[4]nIn light of this background, this essay will analyze the pros and cons ofnproliferation of ICTs before briefly dealing with the necessity of introducingnnew ones. This essay agrees with the statement in question in part in that althoughnrisks caused by proliferation of ICTs are real and unlikely to avoid, they cannstill be tolerated by the international law regime, and an increasing number ofnICTs also bring benefits by strengthening the functions of litigation. Nonetheless,ncaution is still needed to ensure integrity of international law by avoidingnunnecessary inconsistent jurisprudence and concurrent jurisdiction.

Proliferationnof ICTs can indeed generate risks. Some risks may be just potential ornspeculative. For example, it may be argued that proliferation of ICTs increasesnthe likelihood of forum shopping which may cause vicious competition betweennICTs and it is likely that ICTs may tailor their judgment for the purpose ofnincreasing their caseloads to the detriment of a more objective approach tonjustice.[5]nHowever, other risks can be real and unavoidable and there have actually existedna number of cases demonstrating such problems. One of the major problems is inconsistencynof jurisprudence. Unlike domestic law, international system lack a mechanism ofnhierarchy to settle the conflicts, so inconsistencies are unavoidable.[6]nThe dispute on the 『overall control test』 in Tadic of ICTY and 『effective control test』 in Nicaragua of ICJ is one of the most cited examples as demonstratingncontradictory jurisprudence.[7]nThere are also other cases showing that ICTs can deviate from the jurisprudencenof other courts without providing enough reasoning to differentiate the cases. Southern Bluefin Tuna case, for example,nbrought to light a new interpretation of UNCLOS articles on provisionalnmeasures which deviates from the practice of the ICJ.[8]nITLOS adopted a much lower threshold than that of the ICJ, the latter of whichnrequires showing of irreparable harm in order to obtain injunctive relief, whilenit provides little explanation on this deviation.[9]nAnother major risk caused by proliferation of ICTs is concurrent jurisdiction.nIt is argued that this may raise doubt on finality of judgment if the same casenis brought to different forums in a successive order, as the judgment in the latternforum may influence the credibility of that of the first one.[10]nThere are very few cases like MOX Plantnin which the UNCLOS arbitral tribunal stayed the proceedings and requested thatnparties first find out whether the ECJ has jurisdiction,[11]nwhile this is only an exercise of judicial discretion[12]nand cases exist where the ICTs render judgment despite the same matter alsonfall within the jurisdiction of other ICTs.[13]nAs a result, it is admitted that risks of proliferation of ICTs, especiallyninconsistency of jurisprudence and jurisdiction, are both real and unavoidable.n

However,nthere exist other factors mitigating the risks. First of all, certain characteristics of international law make somenkind of inconsistency tolerable.[14] Divergent rules relating to the same matter can exist at thensame time without disturbing the integrity of international law. As Charneynmentioned, it is common for states to adopt rules applicable in their relationsn- which only apply in special circumstances or among limited members ofninternational community - that vary from general international law, as long asnthis is not contrary to jus cogens.[15] Secondly, the fundamentals of general internationalnlaw currently remain the same regardless of which tribunals decide the case. According to Charney』s comprehensive study over a numbernof core doctrines of international law, the ICTs share relative coherentnviews[16]nand the long history since PCIJ and ICJ were establishedndemonstrates that a certain level of inconsistency can be tolerated inninternational law.[17]nCharney』s conclusion is shared by Webb, who confirmed that minorninconsistencies do exist but the whole picture is still integrate.[18]nFinally, various solutions have already been taken to prevent fromnfragmentation of international law. Although some institutional solutions (likenthe establishing a hierarchy between ICTs) may not be practical or even may bendetrimental to international legal system,[19]nother informal solutions are taking place. As president Guillaume of the ICJ mentioned, the ICJ keeps careful track of the judgments rendered bynother courts and tends increasingly to make reference to them; By the samentoken, certain specialized courts have frequently drawn on the jurisprudence ofnthe ICJ or of its predecessor. [20] Judge Buergenthal also approved that theninconsistency will not damage the unity of international law provided thatnjudges themselves take a cautious approach when making decisions.[21] The risks of fragmentation can also benmitigated by strengthening the central role of the ICJ,[22]nwhich does not come from a legal compulsion, but from recognition of itsnauthority quality of legal reasoning.[23]nIt has been demonstrated in Genocidencase, in which the ICJ justified the conflicts between 『effective control』 andn『overall control』 by distinguishing the factualncircumstances among the cases (overall control is for classification ofnconflicts for the purpose of determining individual criminal responsibility,nwhile effective control is for attribution of state responsibility),[24]nthat the ICJ is able to take this role to mitigate the inconsistencies ofnjurisprudence.[25]nAs a result, the coherence of international law does not appear to bensignificantly threatened by the increased number of ICTs as long as they stay within their respective spheres ofncompetence, remain open to consider the jurisprudence of other internationalncourts, respect the authority of the ICJ and seek to avoid unnecessarynconflicts.[26]

Also, the benefits of proliferation shall not be overlooked, especiallynthe functions of ICTs have been strengthened with the increasing numbers ofnthem. The first function of ICTs is reducing and solving internationalndisputes.[27] The proliferation of ICTs avoidsndisputes between states and give states more choices to settle their disputes.nCompulsory jurisdiction, for example, cannencourage states who do not want themselves to be brought before a court tonobey international law.[28] In addition, the 『socializing effect』 of ICTs has alsonbeen strengthened with proliferation of ICTs.[29] It is making international law more objective andnincreasing the scope of the justiciability of international disputes.[30]nProliferation of ICTs also allows for a certain extent of experimentation andnexploration, though which the best practice can be selected and then widelynapplied, thereby contributing to development of international law.[31]nBecause of these benefits and the fact that we now don』tnhave too many international courts which pose a serious threat to theninternational system,[32]nit is suggested that we may continue to support thenestablishment of more and more regional and specialized international tribunals,nbut whether there could actually be an additional one depends on the need ofninternational community.[33]

To conclude, although proliferation of ICTs risks increasing inconsistentnjurisprudence and concurrent jurisdiction, which are real and unavoidable asninternational law lacks a strict hierarchy between ICTs like domestic law.nHowever, this does not mean that resolutions such as introducing a hierarchyninto international law are matters of emergency now. As demonstrated in thisnessay, the risks of proliferation of ICTs have not generated to an extent as tonbe intolerable by international legal system, and the increasing number of ICTsnis conducive to preventing and solving disputes between states and strengtheningnrule of law in international community. However, it is noted that this argumentnis based on the cautious approach taken by judges to act fully within theirnscope of competence and pay due respect to the jurisdiction and jurisprudencenof other ICTs. It is only in this sense that the statement in question is rightnand more attention may be given to establishing new ICTs.

[1] See C. Romano, 『ThenProliferation of International Judicial Bodies: The Pieces of the Puzzle』 (1999)n31 NYU Journal of International Law and Politics 709.

[2] P-M. Dupuy, 『ThenDanger of Fragmentation or Unification of the International Legal System andnthe International Court of Justice』 (1999) 31 New York University Journal of International Law and Politics 791; G.nAbi-Saab, 『Fragmentation or Unification: Some Concluding Remarks』 (1999) 31 New York University Journal of InternationalnLaw and Politics 919.

[3] P. Webb, International Judicial Integration andnFragmentation (OUP 2013) 210-27.

[4] J. Charney, 『The Impactnon the International Legal System of the Growth of International Courts andnTribunals』 (1999) 31 New York UniversitynJournal of International Law and Politics 697.

[5] Gilbert Guillaume, 『Speech ofnPresident Guillaume to the Sixth Committee of UN General Assembly』 (2000), < International Court of Justice> accessed 17 Marchn2017.

[6] ibid.

[7] Rosalyn Higgins, 『AnBabel of Judicial Voices? Ruminations from the Bench』 (2005) 55 International and Comparative Law Quarterlyn791, 794.

[8] Donald L. Morgan, 『Implications of the Proliferationnof International Legal Fora: The Example of the Southern Bluefin Tuna Cases』n(2002)43 HarvardnInternational Law Journal 541, 545-6.

[9] ibid.

[10]Y. Shany, The Competing Jurisdictions ofnInternational Courts and Tribunals (OUP,n2003).

[11]The MOX Plant case (Ireland v UnitednKingdom), Order No. 3, Suspension of Proceedingsnon Jurisdiction and Merits, and Request for Further Provisional Measures, 24nJune 2003, paras. 1–30.

[12] Webb (n 3).

[13] For example, IJzeren Rijn is a case in this regard.nSee Lavranos, Nikolaos. 『The MOXnplant and IJzeren Rijn Disputes: Which Court is the Supreme Arbiter?』 (2006) 19 Leiden Journal of International Law 223.

[14] J. Charney, 『IsnInternational Law Threatened by Multiple International Tribunals?』 (1998) 271 Hague Recueil des Cours 101, 356.

[15] ibid.

[16] ibid, 347.

[17] ibid, 355.

[18] Webb (n 3) 203.

[19] ibid, 211; Charney (n 10) 369.

[20] Guillaume (n 5).

[21]T.nBuergenthal, 『Proliferation ofnInternational Courts and Tribunals: Is it Good or Bad?』 (2001), 14 Leiden Journal of International Law 267,n273

[22] Charney (n 4) 707; Dupuy (n 2) 798.

[23] Abi-Saad (n 2) 929

[24]Applicationnof the Convention on the Prevention and Punishment of the Crime of Genociden(Croatia v Serbia) (Preliminary Objections: Judgment) [2008] ICJnRep 412.

[25] Webb (n 3) 225

[26] Buergenthal (n 21) 273.

[27] P. Sands, 『Reflections on InternationalnJudicialization』 (2016) 27 EuropeannJournal of International Law 885.

[28] Charney (n 4) 704; Dupuy (n2) 796.

[29] Buergenthal (n 21) 275.

[30] Dupuy (n 2) 796.

[31] Charney (n 4) 700.

[32] Buergenthal (n 21) 275.

[33] ibid.

推薦閱讀：