EJIL is interested in publishing articles addressing the theme of  ”Science and International Law.” This theme is understood broadly and could include:

• International law and genetically modified organisms (GMOs)
• International law and the internet
• International law and the uses of science in environmental regimes
• International law and the uses of science as proof
• International law and the status of scientific expertise

Of particular interest are contributions which develop conceptual and theoretical approaches, and which consider the challenges of using science in international litigation. Readers of the blog who are working in this area and have advanced drafts who would be interested in publishing their work in EJIL should contact Professor JHH Weiler, our Editor-in-Chief. (joseph.weiler {at} nyu(.)edu)

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.

 In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.

The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.

Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.

(more…)

Eyal Benvenisti is Professor Human Rights Law at Tel Aviv University and George Downs is Professor of Politics at New York University. Their Article “National Courts, Domestic Democracy, and the Evolution of International Law is published in the current volume (20) of EJIL and is available here.

1. The Impact of Globalization on National Courts

           Traditionally, the common practice of national courts across the globe has been to avoid any application of international law that would clash with the position of their governments, a deference that helped to insure their executive branches unfettered discretion in external affairs. In recent years, however, national courts have begun to venture into the international arena to take issue with the positions of their governments regarding the interpretation of treaties and to constrain what had previously been their free hand in international bargaining. This move into the international realm has been complemented by a newfound willingness on the part of national courts to coordinate with each other in reviewing the acts of international organisations and in collectively interpreting the shared legal texts of international law and comparative constitutional law.

There is little indication that the change is related to any alteration in the process by which judges are selected or to the growing salience of international law school curricula in recent years. The chief motivation of national courts remains that of protecting the domestic rule of law rather than that of promoting global justice. In this essay and elsewhere, we argue that what has changed is the context which national court judges find themselves operating in. The accelerating globalization has altered the assessment of national courts about the nature of the primary threats to the domestic order and the strategies they will need to adopt in order to cope with them.

Since the early 1990s, intergovernmental coordination has become a prerequisite for the regulation of a host of activities in areas such as the environment, national security, and financial markets that had previously been the exclusive province of individual state governments. This coordination effort has been driven and controlled by the executive branches of the states involved and in most cases dominated by those of the powerful developed countries. As a result, an ever-increasing number of regulatory policy decisions with important domestic consequences issues are being relegated to the fragmented transnational sphere and escaping the scrutiny of the domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts. Under these conditions the continued passivity of courts in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks serious erosion in the effective scope of judicial review. 

 2. The Emergence of Inter-Judicial Dialogue as a Response to Globalization

As a consequence, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial coordination. Fortunately for these courts, they are increasingly discovering that they can help maintain the space for domestic deliberation and strengthen the ability of their governments to withstand the pressure brought to bear by foreign and local interest groups and powerful foreign governments.   (more…)

I find myself in the awkward position of being in full agreement with Prof. Laurence Helfer’s criticism of the “broad brush” approach used in my EJIL article to describe trends in international adjudication (this is not surprising; often I find myself nodding in agreement when reading Helfer’s first-rate academic work). When writing overview articles such as “No Longer a Weak Department of Power?“, the dilemma is always whether to focus on the forest or the trees. Obviously, my choice of the “forest” – the general trends in international adjudication – entailed a superficial, almost caricature- like, treatment of the “trees” – the specific courts. Readers of my article would there be well-advised to remind themselves of the many shortcomings of the approach I have selected.

In particular, Helfer is right in noting that regional courts should not be lumped together as a single category for all purposes:

“Many studies of international adjudication appear to assume either that the legal and political dynamics of global or European courts will apply to tribunals in other regions, or that lesser known courts in Africa, Latin America, and Eurasia have done little to merit the attention of scholars.  A growing body of evidence suggests, however, that both assumptions are unwarranted.”

 Indeed, the recent ASIL article by Alter and Helfer focusing on the Andean Court of Justice is an excellent illustration of the unique nature of some regional courts and of the unpredictable way in which their work and impact develops over time.

 Still, I would defend the following position: While the effectiveness of different courts varies dramatically across regions due to the background “legal and political dynamics” that influence their work, the goals set for regional courts upon their establishment tend to converge. This happens, to a large extent, as a result of the “copycat” motivation that leads law-makers to “implant” models of successful legal institutions across regions and regimes. So, for example, the perceived success of the ECHR, has led to the creation of the comparably structured I/A CHR and fledgling African Court of Human Rights (now part of the African Court of Justice and Human Rights). Although the three courts encounter very different legal and political problems and have widely divergent records of achievement (meaning that the “implant” has been sometimes rejected), they appear to share, as a result of their derivation from a common “prototype”, a strong commitment to promoting respect for human rights and to holding member states accountable. Hence, the I/A CHR and the ACHR, like the ECHR, are illustrative of the new ethoi of international courts – enforcing norms and building an international rule of law.

(more…)

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.  (more…)

 From July 2009, Professor Laurence Helfer will be the Harry R. Chadwick, Jr. Professor of Law at Duke University School of Law. His publications include: “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community”, (2009) 103 Am. J. Int’l L. 1 (with Karen Alter and Florencia Guerzovich); and  Why States Create International Tribunals: A Response to Professors Posner and Yoo,” 93 California Law Review 899 (2005) (with Anne-Marie Slaughter)

 Yuval Shany is a leading international law scholar of international courts and tribunals.  His many publications, including two books in Oxford University Press’s International Courts and Tribunals Series, have literally mapped the field’s coordinates.  His work has explored both the horizontal connections among the burgeoning number of international adjudication mechanisms and vertical relations between international judges and their national colleagues. 

 In his recent article, No Longer a Weak Department of Power? Reflects on the Emergence of a New International Judiciary, Professor Shany provides a clear-eyed and succinct overview of changes “in the ethos underlying the operation of international courts” that are the result of an increase in the number of such courts and an expansion of their authority.  Whereas the ground norm that once informed international adjudication was dispute resolution, Professor Shany argues that the new international judiciary emphasizes different values-”the advancement of specific normative and institutional goals,” the maintenance of subject-specific international regimes, and “strengthening the rule of law.”  After describing these “new ethoi,” No Longer a Weak Department of Power? provides a brief tour of the contemporary international judicial landscape, including its peaks (such as the adjudication of international trade disputes and the role of national courts in applying international law) and its valleys (jurisdictional and normative conflicts and compliance problems).

 In this comment, I first highlight what I see as the principal contributions of Professor Shany’s  article.  I then discuss one small ambiguity in the article concerning whether international courts can or should resolve “high politics” and “high profile” disputes, such as those involving the use of force and terrorism.  I conclude by arguing for a more empirically-grounded approach to the study of international courts and tribunals, an approach that includes paying greater attention to the distinctive characteristics of the many regional and sub-regional courts outside of Europe whose increasing activity has been ignored by most scholars.

(more…)

Professor Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem. His latest EJIL article, summarised in this post, is available here. His publications include The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003) and Regulating the Jurisdictional Interactions Between International and National Courts (OUP, 2007).

The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international disputes settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties and the growing inclination of national courts to apply international law. Arguably, these cumulative developments herald a qualitative change in the configuration of the field of international dispute settlement. Whereas international law had been applied in the past by judicial bodies on relatively few occasions, the operation of the new international judiciary has been much more “routinized”, and nowadays increasingly resembles the operation of national courts (and, in the same vein, the application of international law by national and international courts increasingly resembles the application of national law by national courts). At a deeper level, one may claim that the operation of the new international judiciary is governed by new ethoi (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution).

The second part of the article discusses some of the “blind spots” of the present judicial institutional landscape: a) Jurisdictional gaps – the new courts have been concentrated in a relatively limited number of areas of international relations, mostly appertaining to the protection of basic human rights, some economic relations, and maritime interests. Many other areas of international life of critical importance (such as politically-charged conflicts before international courts relating to war and terror) largely remain outside the compulsory jurisdiction of any international court. What is more, the personal jurisdiction of the new international judiciary is less than universal, and sometimes those very states that are most likely to become involved in conflicts falling under the jurisdiction of the new courts tend to withhold their consent to jurisdiction; b) Enforcement gaps – the increase in the jurisdictional reach of international courts has not been met with a comparable increase in their enforcement capabilities, which would enable courts to effectively carry out their missions. While this may be less of a problem in the economic sphere, (where cooperative regimes typically generate their own incentives to comply), it appears to be a serious obstacle to the smooth functioning of international courts in fields such as criminal law.

 While national courts can, in theory, fill some of these remaining jurisdictional and enforcement gaps, their ability to actually do so remains unclear. Perhaps the combined effect of a more robust ICJ, and more international law-minded national courts, could go some way towards closing the existing gaps in international jurisdictional coverage and enforcement.

 The third and last part of the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: a) coordination problems – the uncoordinated manner in which the new international courts were created, and the specialized character of their jurisdictional structures, generates potential jurisdictional conflicts and introduces tensions that threaten the coherence of the international legal system as a whole; b) effectiveness and perceived legitimacy  – the judicialization of dispute settlement may not always produce better outcomes for the relevant stakeholders, particularly where some of the parties deem the applicable norms to constitute an inadequate basis for a just and comprehensive settlement (without some adjustments). Moreover, one may wonder whether the investment of considerable political and financial resources on the part of the international community in establishing new international courts always represents the most cost-efficient investment of resources.

 The expansion of international courts and international jurisdiction without seriously addressing problems related to their jurisdictional limits, enforcement powers, jurisdictional and normative relations with other bodies, effectiveness and perceived legitimacy may result in a political and legal backlash that would, over time, complicate the mission of international courts. Hence, one of the key challenges in the 21st century for the international judiciary (and the international community on whose behalf it operates) will be to develop legal doctrines, best-practices, and institutional safeguards to address such concerns.

Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the current anniversary issue of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law“  and Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”. Both are available here.

Participants in the discussion will include, in addition to the authors of the articles, Professor Laurence Helfer (currently Vanderbilt Law School but at Duke Law School from July 2009), Dr Chester Brown (University of Sydney) and Alison MacDonald (Matrix Chambers, London). As always, your comments are very welcome using the comments facility on the site.

(more…)

Editors Note: This post was originally posted on EJIL:Talk! as a comment by Pål Wrange LLM, PhD (Stockholm) in response to last week’s discussion on Prof. Koskenniemi’s article. Mr Wrange, Principal Legal Advisor on public international law at the Swedish Ministry for Foreign Affairs, is currently on leave of absence and working as a consultant in Kampala

*****

 I presently live in Uganda, and have since 2007 been involved in various aspects of the peace process between the Government and the Lord’s Resistance Army (LRA). As many readers of this blog will know, in 2005 the ICC handed down five arrest warrants against Joseph Kony and other commanders of the LRA. These arrest warrants were extremely controversial in this country, partly because they were said to derail the peace process, partly because they did not correspond with many people’s perception of justice, and partly because they were felt to constitute a heavy-handed intervention by ‘global governance’. While I believe that neither of these points is completely wrong, let me also say for the record that I think that the decisions to request and issue the arrest warrants were right (which is not to say that the ICC could not have done things different, and much more sensitively). Be that as it may, the important point in this context is that the ICC has been quite central to the peace debate in Uganda ever since the ‘self-referral’ by the Government to the ICC became public in 2004.

So, there is a peace-process, fledgling for sure, but still holding real prospects for peace. And then there is a threat to this peace-process, in the form of a prosecution by an international body. No one will lay down his arms if that means going to jail. Now, how do you think about this problem? A human rights issue? An international humanitarian law issue? An issue of the recently formed – and now fully established — field of international criminal law? An issue of conflict resolution? An issue of domestic law (criminal law or constitutional law)? Or perhaps an issue of transitional justice?

 It is obvious that the mere choice of field from which to analyse situation does not answer any questions. (more…)

Professor Iain Scobbie, is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London

The burden of Professor Koskenniemi’s article appears to bear an uncanny likeness to St Teresa of Avila’s aphorism that answered prayers cause more tears than those that remain unanswered. His article is both a restatement and development of the concerns he addressed twenty years ago in “The Politics of International Law”, namely that law is inevitably indeterminate and must always defer to contested political assumptions (or discretion) in order to impose a decision and that, consequently, international lawyers must be reflective and take responsibility for their actions in both the practice and doctrinal development of the discipline. He has consistently argued that a failure to examine one’s actions contributes to the perpetuation of the problems that international law claims to alleviate. There is merit in this argument: as Colin Warbrick pointed out, a refusal to think about what one is doing may amount to a “latent theory” which rests content with the status quo and seeks neither to question nor justify either the substance or practice of international law (see Warbrick C, “The theory of international law: is there an English contribution?”, in Allott P et al, Theory and international law: an introduction (BIICL: London: 1991).

But to speak of the “discipline” of international law is perhaps to impose a falsely monolothic character on the enterprise. As Professor Koskenniemi argues, one of the characteristics of contemporary international legal practice is specialisation, where discrete sets of substantive issues are packaged into categories such as humans right law or trade law or environmental law, each of which have attendant specialised vocabularies that intellectually structure the possibilities and limits of the given field. Special regimes have thereby been created “that cater for special audiences with special interests and special ethos”. Each of these embody structural biases in the form of dominant expectations about the values, actors and solutions appropriate to that specialisation, which thus affect affect practical outcomes . These expectations differ from specialisation to specialisation. Participants conceptualise issues in ways which locate them within a particular specialisation in order to pull on the biases encoded within that specialisation. In doing so they highlight some elements of a situation while disregarding others. This act of classification is often seen as natural or neutral, rather that one which chooses between contested categories which emphasise conflicting values and thus determine the range of possible or permissible outcomes. Consequently international lawyers should examine the implications of their classification of an issue. Professor Koskenniemi agrees with David Kennedy’s observation that international lawyers often have recourse to using specialised vocabularies and institutions without reflecting on their effect in the real world, but continues that if his indeterminancy thesis is correct, then these vocabularies and institutions must themselves be sites of controversy and compromise. Thus an agreement on broad objectives may lead to disagreement on how these are to be achieved, and different political approaches may be adopted to the same given issue—“One needs to know whose understanding of ‘human rights’ or which notion of security ought to be preferred and, once that preference is fixed, what type of action will best support it”. This requires detachment–“strategic sensitivity and the pursuit of critical distance”—from the institution chosen and the objectives it pursues in order that one is not blinded by, but rather may apprehend, its particular structural bias.

Professor Koskenniemi’s indeterminacy thesis may be seen to have affinities with one of the principal strands of American legal realism, rule scepticism, which argued that uncertainty lies in the very formulation of rules, and thus judicial decisions cannot not lay claim to being simply the inexorable application of the law to the issue in question. (more…)