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Comment on Yuval Shany, ‘No Longer a Weak Department of Power?’

Published on June 15, 2009        Author: 

Dr Chester Brown is Associate Professor at the Faculty of Law, University of Sydney, where he is a Programme Coordinator for the Master of International Law. His research interests are public international law, international dispute settlement, international arbitration, international investment law, and private international law. Dr Brown is a Solicitor of the Supreme Court of England and Wales, and a Barrister and Solicitor of the Supreme Court of Victoria and the High Court. He is an Associate Member of the Chartered Institute of Arbitrators, and a door tenant at Essex Court Chambers, London. He is the author of A Common Law of International Adjudication (OUP, 2007), and is a graduate of the Universities of Melbourne, Oxford, and Cambridge.

 

Professor Yuval Shany’s work on international courts and tribunals has made a significant contribution to our understanding of international adjudication in the modern age.  As already noted by Professor Helfer in his comment, Professor Shany’s publications have ‘mapped the field’s coordinates’.  International adjudication is a discipline where the works of public international law’s doyens have long been considered compulsory reading, including those of Rosenne, Fitzmaurice, Lauterpacht (both Sir Hersch and Sir Elihu), Schwarzenberger, Hudson, Verzijl, and Bowett.  And in the age of the ‘proliferation’ of international courts and tribunals, and the accompanying challenges (such as the possible ‘fragmentation’ of international law), it is increasingly difficult to discuss international adjudication in any complete sense without having reference to Professor Shany’s writings. 

In his recent article, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, Professor Shany discusses some of the issues arising out of the recent changes in the field of international dispute settlement.  His article offers a clear and succinct overview of the emergence of the many new international courts and tribunals in the past 20 years, including the International Criminal Court, the ITLOS, the Appellate Body of the WTO, and the large number of arbitral institutions and quasi-judicial bodies (p 79).  In addition to the newly created international adjudicatory bodies, the jurisdiction of a number of existing international courts – most notably the Court of Justice of the European Communities and the European Court of Human Rights – has also expanded, due both to an increase in their membership, and also to the reform of their underlying constitutive instruments (p 75).  Professor Shany also notes the marked rise in resort to international adjudication as a means of settling international disputes, as well as an increasing readiness on the part of national courts to apply public international law in resolving ‘politically-charged cases’ (p 75).  He argues that the ‘cumulative effect’ of these developments is the emergence of an ‘international judiciary’ (albeit one that is fragmented), and also the ‘routinisation’ in the application of international law as a means of settling disputes.  Indeed, he argues that ‘international adjudication … is becoming the default dispute settlement mechanism in some areas of international relations’ (p 76).   

Professor Shany then assesses some of the theoretical and practical implications of these developments, and in particular he argues that ‘the rise in the number of international courts and the expansion of their powers should be primarily understood as a change in the ethos underlying the operation of international courts’ (pp 77–83).  He also identifies what he terms ‘blind spots’ of the existing mechanisms for settlement of international disputes by adjudication, the most notable of which are the ineffectiveness of international courts and tribunals in the context of disputes relating to the use of force and the fight against terrorism, and the continuing difficulties in enforcing judgments and awards of international courts and tribunals (pp 83–86).  He then turns to some difficulties that have attended the increase in the number of international courts and the expansion of their jurisdictional powers.  These include the emergence of inconsistent jurisprudence (pp 87–88), and the question whether it is indeed desirable for many international disputes to be resolved by judicial or arbitral settlement, for, in contrast to the diplomatic forms of dispute settlement, adjudication produces results which are ‘binary’, and its confrontational and adversarial nature may even tend to exacerbate the relations between the parties (pp 88–89). 

No Longer a Weak Department of Power? is impressive in the breadth of its coverage, and the issues it raises can generate much fruitful discussion on the past, present, and future of international courts.  In his comment, Professor Helfer has highlighted and elaborated on several issues, being (i) the principal contributions of Professor Shany’s article; (ii) the scope for international courts and tribunals to contribute to the resolution of ‘high politics’ disputes; (iii) and the importance of empirical analysis and the distinctive law and politics of regional tribunals.  In the space remaining, I will pick up on three issues raised by (but not necessarily treated in) Professor Shany’s article – one substantive, one procedural, and one concerning, in a loose sense, remedies.   

 

The first question concerns Professor Shany’s claim concerning the new ‘ethoi’ of international courts and tribunals, a point also noted by Professor Helfer.  Professor Shany recalls that international courts and tribunals were originally created in order to facilitate the resolution of disputes by peaceful means (and discourage the recourse to force), and also to contribute to the development of international law (p 77).   Today, however, many of the existing specialised international tribunals have been created in the context of a particular regime, such as one which promotes, for example, the liberalisation of international trade rules, the protection of human rights and fundamental freedoms, or the economic integration of a regional organisation.  Read the rest of this entry…

 
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