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

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.  Professor Shany argues that the new courts ‘are no longer primarily dispute-settling bodies’ and that they ‘appear to have assumed two other primary functions instead: norm-advancement and regime maintenance’ (p 80-81).  In this regard, international courts may be said to have their own ‘Missionsbewuβtsein’ or ‘in-built bias’ (p 81).  So, in an age where the spheres of activity of international courts and tribunals may overlap, litigants face not only the difficulties presented by competing jurisdictions, but also the uncertainties which may be created by competing biases.  In these circumstances, the question arises whether a specialised or regional international court might ever be justified in invoking such a ‘bias’ – however implicitly it may do so – to decide a dispute in a way which would be diametrically opposed to the decision that a body with general subject-matter jurisdiction would reach.  In this regard, it is not just the ongoing – but temporarily suspended – Swordfish dispute which comes to mind, of which both a WTO panel and an ITLOS Chamber remain seised, but also the proceedings pending before the ECHR and the ICJ concerning the August 2008 war in Georgia.  Should we be concerned, for instance, that the ECHR might, in interpreting and applying the European Convention for the Protection of Human Rights and Fundamental Freedoms, reach an outcome which is at odds with the ICJ’s interpretation and application of the Convention on the Elimination of All Forms of Racial Discrimination, as it applies to the same (or, at the least, a very similar) dispute?

The second issue relates to a procedural point which can arise where multiple proceedings, concerning the same set of facts, are pending before different international courts.  This is the question whether relevant findings of fact made by one international court should be binding on another.  This occurred, of course, in the Bosnian Genocide case, as many of the issues that were put before the ICJ had been pleaded before and been the subject of consideration by the ICTY.  Bosnia and Herzegovina, the Applicant in that case, placed ‘major weight’ on the evidential material available before the ICTY, whilst Serbia and Montenegro considered that much of that evidence did not have the same relevance or probative value (Judgment of 26 February 2007, para 215).  In its judgment, the ICJ concluded that it should, in principle, accept as ‘highly persuasive’ findings of fact made by the ICTY, unless such findings had upset on appeal (Judgment, para 223).  There is no reason to doubt the approach of the ICJ; after all, the ICTY, as an international criminal tribunal, applies a high standard of proof (proof beyond reasonable doubt).  This is not the case, however, in all international courts and tribunals.  There is no settled standard of proof in international adjudication, but the standard which is most commonly applied more closely resembles a ‘balance of probabilities’ standard.  So if related disputes were litigated before, say, a MERCOSUR tribunal, and a WTO panel, should the findings of fact made by one carry the same weight as did the ICTY’s findings of fact before the ICJ?  Or should each international court proceed to its own appreciation of the facts?

A third, and final, comment relates to the possible solutions for the difficulties identified in Professor Shany’s article.  Professor Shany confesses to being concerned at the ‘increasing number of actual and potential jurisdictional clashes and normative fragmentation’ (p 87).  In The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003), Professor Shany argued for the implementation of ‘better inter-judicial structures, aimed at improving coordination and harmonisation between competing fora’ (p 272).  Yet the structural reforms which would be necessary to resolve these problems – such as conferring some type of appellate jurisdiction on the ICJ – are almost certainly impracticable.  In light of this, is it safe to leave the resolution of these issues in the hands of international judges?  H.E. Judge Gilbert Guillaume, the former President of the ICJ, doubts that this is the best approach; in his address to the UNGA Sixth Committee in 2000, he stated that ‘to leave it to the common sense of the judges to deal with these consequences may well prove insufficient.’  To date, however, it would seem that international judges have coped relatively well.  For instance, the approach of the ICSID tribunal in Southern Pacific Properties (Middle East) Ltd v Egypt ((1988) 3 ICSID Rep 131), and that of the UNCLOS Annex VII tribunal in MOX Plant (Procedural Order No 3 of 24 June 2003), both of which faced parallel proceedings, were eminently sensible.  There are also frequent exchanges between members of the ‘international judiciary’, which can serve to enhance a sense of ‘judicial comity’ among international courts; a recent example of this is the conference convened by the Council of Europe and the Swedish Government, and hosted by the British Government, at Lancaster House, London, in October 2008.  It would be interesting for Professor Shany to clarify what other types of action we should consider taking, in preference to the ‘ostrich approach’ to these issues which currently prevails (p 87).  

No Longer a Weak Department of Power? is a very thought-provoking piece on the current state of the international judiciary, but it represents the mere tip of the iceberg regarding the issues raised by the recent changes in the field of international dispute settlement, which is something that Professor Shany concedes in the introduction to his article.  This comment has sought to use Professor Shany’s article to examine several of these issues; this will, it is hoped, give rise to further analysis and a better understanding of the ‘new international judiciary’.