Yesterday the STL Appeals Chamber issued its first substantive decision (h/t Bill Schabas’ blog), penned by Professor Antonio Cassese, who was not only the presiding judge but also the judge rapporteur in the Chamber. The decision delves in great detail into the concept of inherent powers of international courts and tribunals, and is strongly reminiscent of the ICTY Appeals Chamber’s first decision in Tadic, over which Judge Cassese obviously also presided.
Expansive invocations of inherent powers have not come without controversy. The STL decision, although ostensibly dealing with a very technical matter of the access of a potential suspect to documents in his case file, is well worth the read on several points of principle. I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of customary international law now exists to the effect that international courts and tribunals possess an inherent jurisdiction, which confers on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber went on to prove that such a customary rule existed (para. 47):
The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.
Fantastic, no? Note how custom now apparently equals what tribunals say is custom, plus lack of objection by anyone else. Note also how the Appeals Chamber does not refer to state practice and opinio juris, but to practice pure and simple, as well as to the ‘lack of any objection by States, non-state actors or other interested parties‘ and the ‘acquiescence of all the international subjects concerned.’ Hardly an orthodox account of the formation of custom!