The International Judicial Function Under Pressure: Do Courts and Tribunals Go Off the Rails?

Rights reserved: International Court of Justice 2024

Led by Professor Laurence Boisson de Chazournes and Dr Lorenzo Palestini

About

Having reached its zenith at the beginning of the twenty-first century, the international judicial phenomenon may well have since then embarked on a steep descent towards its nadir. The swing of the pendulum is evidenced by all kinds of manoeuvres aimed at obstructing, paralysing or even dismantling international courts and tribunals. Whereas some high-profile cases, such as the crisis faced by the Appellate Body of the WTO, monopolise the debate, the disenchantment that characterises our times is neither restricted to particular categories of disputes or dispute settlement mechanisms nor confined to certain regions of the world.

While contemporary research aims to address backlash against international courts and tribunals from a multidisciplinary perspective, thus unifying the field by bringing legal scholars, sociologists and political scientists together, the purpose of this research project is to ascertain, through mixed methods relying on qualitative analysis, whether adjudicators share part of the blame for the current socio-legal context. In particular, the research project aims at determining whether correlations can be established between backlash and the way the judicial function has been exercised. It is true that exogenous factors, such as the crisis of multilateralism and the so-called re-nationalisation of authority, provide explanations for the ongoing attempts to delegitimise international courts and tribunals. However, endogenous factors relating to the inner workings of dispute settlement mechanisms have also been targeted. What has often been criticised are alleged patterns of activism, overreach and judicial law-making.

The research project will provide an inventory of the criticisms relating to judicial overreach, as well as a catalogue of the proposed corrective devices that tighten the leash on supposedly reckless international courts and tribunals. The project will then assess whether the criticisms are justified and whether the rectifying devices are compatible with the proper exercise of the judicial function, or, rather, worse than the perceived disease they seek to cure. No comprehensive study has provided a crosscutting empirical overview of the criticisms and corrective mechanisms involved. The specific and practical aim of the project is thus to fill a gap, one that requires answering a twofold question. What are the boundaries of the international judicial function, and what constitutes interference in the exercise of that function?

Research Dimensions

Criticisms and Corrective Devices

A. Substantive Jurisdiction and Applicable Law 
Most international courts and tribunals are entrusted with specific subject matter jurisdiction, i.e. jurisdiction limited to a single treaty or set of interrelated instruments. Even courts assigned with general jurisdiction encompassing a wide array of subjects are often faced with reservations and other limitations that significantly reduce the set of issues that can be brought to litigation. Thus, jurisdiction is not all encompassing but usually limited to definite matters. Yet disputes rarely fit into neatly assorted compartments. Confronted with instances of so-called mixed disputes, adjudicators have drawn different lines for judicial overreach. While some evaluate where the weight of the dispute lies, others check whether ruling on a submission would first entail addressing an indispensable incidental issue beyond the scope of their jurisdiction. To what extent can adjudicators look beyond the submissions of the parties? Can they rely on applicable law provisions to expand their material jurisdiction? Is it true and, if so, a problem that the advisory function, like the contentious one, often tackles concrete disputes, as opposed to abstract questions? 

B. Precedents and Reasoning 

Reasoning is the mode of expression of the international judicial function. It is therefore often one of the grounds for challenges to international courts and tribunals. In particular, what is often criticised today is not so much overly elliptical reasoning as excessive reasoning that deals with legal issues that are not indispensable for the settling of disputes. This prolixity is challenged on the grounds that it would make international courts and tribunals legislators of international law, for which they are not qualified. The use of judicial precedents in reasoning is also subject to serious criticism. Although this use is generally perceived as conducive to the coherence and predictability of legal rules, international courts and tribunals that make use of it have been criticised for failing to take into account the relative effect of decisions and for attempting to assume a law-making role, despite institutional limitations in this regard. 

C. Interpretation and Judicial Law-Making 

International courts and tribunals walk on a tightrope when they are entrusted with the task of interpretation. In practice, the dividing line between interpreting a treaty or an instrument and law-making is far from being clear. Often, the treaty terms are vague and ambiguous. Any attempt by international courts and tribunals to fill the gaps could create a recipe for backlash as the main judicial function of international courts and tribunals is to state the existing law and not make it. This blurred dichotomy of judicial interpretation and judicial law-making also represents the constant interplay of control and authority between States and international courts and tribunals over the interpretation of norms of international law. To what extent do courts and tribunals enjoy the power to interpret? Is it a delegated form of interpretative authority? Although constituent instruments of courts and tribunals may contain a limitation on such authority, the terms of such instruments itself are unclear and have therefore obfuscated the contours of the judicial function. 

D. Judicial Review and Appellate Function 

To what extent can adjudicators review the validity of acts taken by organs of the United Nations, specialized agencies and other international organizations? Aside from judicial review strictly speaking, can international courts and tribunals disregard findings made by other international organs? In the context of appeals before higher international courts, to what extent can adjudicators review factual findings made by municipal courts and is domestic law to be qualified as a matter of law or a factual one?  In recent times, these questions have raised significant challenges for courts and tribunals that are part of an international institution such as the ICJ or the WTO, as the division of authority between different organs is not clear cut. At the same time, international courts and tribunals are increasingly assigned the task of exercising appellate function over acts of international organs. Due to an unclear conception of appellate function in the international legal system, States have an incentive to not only appeal acts that are not in their interest but also re-litigate the whole dispute during the appeal stage. 

Team

Events

The Advisory Judicial Function of the International Court of Justice and the Resolution of International Disputes: Dialogue between Prof Pierre Klein and Dr Lorenzo Palestini with Welcome Remarks of Prof Laurence Boisson de Chazournes



On 25 March 2022, Prof Pierre Klein and Dr Lorenzo Palestini discussed whether, notwithstanding their distinctive features and purposes, the advisory and contentious functions of the International Court of Justice have been blurred in international practice. The event focused on the so-called non-circumvention principle, which compels the Court to decline giving an opinion when that amounts to eluding lack of consent. The discussions showed that the line between answering legal questions with a view to assisting international organisations and essentially resolving State-to-State disputes is subtle to say the least. A sovereignty dispute and the broader multilateral frame that is the law of decolonization and the right to self-determination may well be two sides of the same coin. Is the way legal questions are framed important, or should the Court look past formulations to assess the concrete impact of it opinions on disputes? To what extent can advisory opinions, which by definition have no binding effect, nonetheless bring disputes to an end? By looking at the Chagos Archipelago and the contentious and advisory proceedings it prompted, the event considered the boundaries of the advisory function and evaluated jurisdictional strategies. It showed that, while there are bilateral disputes which should not be brought through the advisory door absent the consent of the interested parties, there are also controversies that fall within the mandate of the UN in respect of which the non-circumvention principle should no longer apply.