The Role of International Courts and Tribunals
The Hague, in the Netherlands, is fundamentally representative of the international legal system to which international courts and tribunals are paramount. Indeed, the city hosts the International Court of Justice, UN organ and the highest court of general jurisdiction , but also the International Criminal Court, an independent court prosecuting individual for the most serious crimes, but also the Special Tribunal for Lebanon which is an ad hoc tribunal set up by the United Nations Security Council, which seeks to prosecute the authors of the terrorist attacks of 2005 in Lebanon, which had killed the Lebanese PM Rafik Hariri. If those institutions are vastly different, they have the common point of enforcing the rule of international law. This concern had been rising since the 19th century, but more especially following the atrocities of the world wars.
Progressively, their scope and importance has been furthering, important tools in the enforcement of rule of law. Today, there is a diversity of status for international courts and tribunals, with for each one a specified role. They however face challenges in the fulfillment of their role. How has evolved the exercise of the international courts and tribunal’s roles? The international courts and tribunals are a cornerstone in the international legal order, and constitute a real framing multiplicity regarding their subjects and roles.
A Rise of International Jurisdictions as Post-War Legacies
The first permanent international court established was the Permanent Court of Arbitration. It was established at the time of the first Hague Peace Convention. It was created to be the first means of legislating international affairs, under the impetus of Tsar Nicholas II of Russia, in order to provide the necessary means to limit the arms race that had developed throughout the second half of the 19th century. Previously, international decisions were not arbitrated by a higher authority but were taken in Congress, bringing together the great powers in order to reach a compromise. For example, the Congress of Vienna divided up Europe and decided the fate of the defeated in the Napoleonic wars, or the Congress of Berlin decided on the division of Africa between the great colonial powers. From then on, we can see that in a situation prior to the establishment of international courts, decisions were taken by the great powers relying on compromises with the other powers, as well as on treaties signed between powers to put forward their arguments and influence decisions. The reason for the creation of such a court was to limit the risk of a war erupting between powers because of unresolved tensions: on the one hand, German militarism worried the democracies and Russia at the time, and on the other hand, the colonial divisions of Asia and Africa worried and risked leading to armed conflicts if no legislation was applied.
For similar reasons, the world wars favoured the establishment of international organizations. With the end of the First World War, the League of Nations was created in order to prevent a conflict as deadly as the First World War from happening again. On the initiative of the League of Nations, the Permanent Court of International Justice was created by article 415 of the Treaty of Versailles and article 14 of the League of Nations Pact to 'prepare a project for a permanent court of international justice'. While the Permanent Court of Arbitration had failed to meet its objectives, notably because of tensions over the appointment of judges, it was decided that the judges would be appointed by the League of Nations in order to avoid the same problem. From then on, it can be seen that the war favoured the establishment of international law: without it, it would not have been possible to reach a consensus on the system of appointing judges, as the differences between the powers were too great and the requirements of international justice too far removed from national interests. The trauma of the war encouraged this need and motivated international public opinion. However, this same link between the League of Nations and the ICJ meant that the United States never joined the ICJ, seeing it as an obstacle to its sovereignty. If the first attempt to create an international court was above all preventive, anticipating the risk of a war between militarized states, the PCIJ was intended to be dissuasive, the actors of the PCIJ wishing above all to avoid a repetition of the world war scenario. They met with certain opposition from American isolationists, as the Wilsonian spirit favoured by the war in Europe had not succeeded in establishing itself in the United States, which was relatively spared by the war.
The third notable case is that of the International Court of Justice created in 1945 as part of the creation of the UN. This took over from the PCIJ, and was made possible by the Moscow Conference of 1943, whose project was to 'maintain peace and security' through the 're-establishment of law and order [through] the inauguration of a system of general security [...] on behalf of the community of nations. Because of the polarized state of world geopolitics, and the involvement of both the communist and western poles in the construction of international legal institutions, but also because the ICJ was more closely tied to the UN than the PCIJ was to the League of Nations, this court proved to be much more durable. It served as an intermediary in a Cold War context, notably in cases such as the Corfu Channel incident or the Nicaraguan Contras crisis, making it possible to maintain a balance between the two blocs while applying international law, each side having an interest in seeing international law respected at least a little in order to avoid an escalation. If the PCA was preventive in anticipation of a supposed future, the ICJ, as the PCIJ, were a deterrent to avoid repeating past mistakes related to a lack of international balance. On the other hand, while the PCIJ ended up being ineffective in the 1930s due to a lack of means of action, the ICJ, by being linked to the great powers and the UN, managed to remain sustainable.
An Essential Role as Tool Backing the International Rule of Law
As we have seen, the creation of these tribunals is systematically based on a specific geopolitical context: either in a preventive manner (fear of war for the PCA, territorial conflicts and ecological crises for the International Tribunal for the Law of the Sea), or in a dissuasive manner (refusal to repeat the same mistakes as in the past for the PCIJ and the ICJ). However, these tribunals are also the necessary basis for the establishment of an international system. Before their establishment, the absence of a global legal system led diplomatic relations to be based on the secret diplomacy denounced by W. Wilson, on unwritten or non-inclusive conventions on an international scale, thus leaving the possibility of broad interpretation in accordance with national interests. This can be seen at the Moscow conference of 1943: the world order and the new international system proposed are built through the announcement of a legal model to come to maintain peace. We note that as soon as the idea of having an international arbitration system was imposed, private initiatives such as the International Peace Bureau, created in 1891, withdrew from the front of the international scene in order to favor the role of states in the management of international judicial bodies; to the detriment of organizations. It can be seen, therefore, that from the moment that international judicial bodies were adopted by a majority of countries, the international system changed from a private initiative motivated by interest groups and associations to supra-state institutions with authority. This is evidenced by the massive adherence of states to the International Court of Justice through their membership in the UN, since the latter is a constituent organ of the UN.
We note that these courts are necessary in the application of laws. Indeed, the ICJ has both a contentious and an advisory role. Article 38 of the ICJ statute states that 'the Court shall apply [in accordance with international law] international conventions, [...] judicial decisions and the doctrine of the most qualified publicists of the various nations as an auxiliary means of determining the law'. Thus, on the one hand, the ICJ determines the law in accordance with the use that can be made of the law in nations with the rule of law; on the other hand, the ICJ applies conventions after the States have participated in their creation. Therefore, the ICJ, and more generally international courts, allow the international judicial system to emerge and be recognized as legitimate, creating a framework for stable and more peaceful international relations. The implementation of these courts and the laws made by them therefore necessarily requires the participation of nations, which is highly dependent on the political context. The action of the court is therefore strongly dependent on the context. First, we note that there have been situations of tension between the court and the state. A majority of countries do not recognize the ICJ's compulsory jurisdiction or have withdrawn such recognition in situations that are not beneficial to them: Australia's withdrawal from the ICJ's recognition of compulsory jurisdiction over the determination of territorial waters is an example.
Diversity of Courts and Tribunals’ Roles to Address Contextual Diversity
Our world is imbricated with multiple international legal orders and international organizations, where international law importance has been furthering. To ensure the enforcement of rule of law at an international level in front of this contextual diversity, international and tribunal courts, in their diversity of status, have a framing role.
First, the role of international permanent courts and tribunals is paramount, as they prevail in the international public law legal order. The International Court of Justice, which is one of the six United Nations organ, is the highest international court with a general jurisdiction. Indeed, the ICJ is the only international court competent to settle general disputes between states in accordance with a broad definition of international public law, as the article 38 provides. If the ruling of the ICJ is legally binding on contentious issues cases, it is important to remind the concerned states consented to submit the case to the ICJ. To give an example of a famous case, in 1952 the United Kingdom sued Iran for having nationalised British assets (of the Anglo-Persian Oil Company). Another ICJ’s role is to provide advisory opinions, which are only consultative, but which are quite respected, on the demand of UN agencies. To give an example, in 2010 the ICJ provided an advisory opinion on the question of Kosovo’s unilateral declaration of independence, after the demand of the UN General Assembly. Moreover, we can mention the International Tribunal for the Law of the Sea, which role is to settle dispute between states on the law of the sea.
Secondly, there are international criminal courts and tribunals. The International Criminal Court, created by the Rome statue in 2002, which is the only independent and permanent court able to prosecute individuals for “The crime of genocide; Crimes against humanity; War crimes; The crime of aggression” (article 5 of the Rome statute). Then, there also exists Ad hoc Criminal Tribunals, which are temporary and with a limited scope. Those tribunals are created by a decision of the Security Council of the United Nations, to prosecute individuals responsible of crimes in a particular situation. The first kind of this one, if we except the Nuremberg and Tokyo trials after WW2, was the International Criminal Tribunal for the former Yugoslavia, created in 1993.
Thirdly, there exists permanent international courts part of regional organizations, which role is to enforce a legal order agreed by the member states of those organizations. One role of those courts can be to enforce human rights. Since WW2, we saw the rise of human rights conventions at an international and regional level. For instance, the member states of the Council of Europe signed the European Convention of Human Rights in 1950. This Convention is enforced by the European Court of Human Rights, which is the Court of the Council of Europe. There also are other such courts on other continents, such as the Inter-American Court of Human Rights (part of the Organization of American States), or the African Court on Human and Peoples' Rights (part of the African Union). Then, there also are Courts dedicated to ensuring and enforce the legal order of an organization, such as the European Court of Justice, in the European Union, which role is to settle disputes and interpret treaties. Other organizations, such as the World Trade Organization with the Appellate Body of the WTO, may also have internal courts to settle disputes.
Limits and Perspectives Regarding International Courts and Tribunals’ Roles
Since last century, there has been a dynamic trend of enforcing the rule of law on an international level. International tribunals and courts, which importance and role has only been growing, remain limited by legal and geopolitical aspects.
One principle of international law and more precisely international justice concerning international tribunals and courts is the consent of states. Another point is that the international tribunals and courts are not sufficient in themselves and need states cooperation. Even for the most important court of general jurisdiction and of which all member states of the UN are part, the ICJ has jurisdiction only on the basis of consent as article 36 of the International Court of Justice statute provides. If the decisions of the ICJ are legally binding, the court cannot enforce them by itself, but can ask of the UNSC to enforce them. For instance, in 1986, the ICJ ruled its decision in Nicaragua v. United States, in favor of Nicaragua. The USA refused to acknowledge the decision and prevented the decision to be enforced by the UNSC with their veto. Also, the International Criminal Court, which is based upon a treaty, does only apply to its member states in virtue of the res inter alios acta principle. Moreover, the ICC requires important cooperation and also the consent of states to carry out an investigation in a country. It also has no armed wing, nor jail to enforce its decisions. Therefore, its capacities rely on the willingness and consent of the states. This necessity for international courts to obtain consent from states strongly limit their power and consequently role in enforcing the rule of law. However, if it is limiting criteria of consent may be necessary, as it seems a corollary to state sovereignty. States would be reluctant to recognize such organizations if consent did not exist, so it is necessary as there is no “hegemon” in the anarchic international system. Then, if we take the example of the ICC, it is a step forward international justice and the end against impunity concerning serious crimes. However, the court has been criticized. First, only 123 out of 193 states are member of the ICC, with major powers such as Russia, China, India, or the USA having not ratified it. Also, the court also faced the withdrawal of African countries such as Gambia or Burundi, who accused the court of being biased in its selectivity, as most cases are about African countries. The, the ICC’s action has been hindered by foreign states, such as when the President of the USA Donald Trump imposed sanctions on the officials of the court, in reaction to the ICC’s will to investigate for crimes committed in Afghanistan since 2003. This example shows the limits of the international courts and tribunals’ role, as they are not self-sufficient and can be threatened by states.
Conclusion
One challenge for international courts and tribunals would be to ensure their autonomy but also their capacity to enforce decisions. A perfect efficiency and fulfilling of the role of those institutions would only be possible in a multilateralist and liberal order, in the spirit of those organizations. Therefore, this is the geopolitical model states have to work forward.
