The Future of International Courts

Regional, Institutional and Procedural Challenges

Avidan Kent, Nikos Skoutaris, Jamie Trinidad, Avidan Kent, Nikos Skoutaris, Jamie Trinidad

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781032241388
• eBook ISBN: 9780429872167
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The end of World War II marked the beginning of a new golden era in international law. Treaties and international organisations proliferated at an unprecedented rate, and many courts and tribunals were established with a view to ensuring the smooth operation of this new universe of international relations. The network of courts and tribunals that exists today is an important feature of our global society. It serves as an alternative to other, sometimes more violent, forms of dispute settlement.

The process of international adjudication is constantly evolving, sometimes in unexpected ways. Through contributions from world-renowned experts and emerging voices, this book considers the future of international courts from a diverse range of perspectives. It examines some of the regional, institutional and procedural challenges that international courts face: the rising influence of powerful states, the turn to populism, the interplay between courts, the involvement of non-state actors and third parties in international proceedings, and more. The book offers a timely discussion of these challenges, with the future of several international courts hanging in the balance and the legitimacy of international adjudication being called constantly into question. It should also serve as a reminder of the importance of international courts for the functioning of a rules-based international order.

'The Future of International Courts' is essential reading for academics, practitioners and students who are interested in international law, including those who are interested in the role international courts play in international relations.

1 What does the future hold for international courts?

Avidan Kent, Nikos Skoutaris and Jamie Trinidad

The twentieth century was the golden age of international law. Treaties and international organisations proliferated at an unprecedented rate, and many courts and tribunals were established to facilitate the smooth operation of this new structure of international relations. The network of international courts and tribunals (ICs) that exists today is an important feature of our global society. It serves as an alternative to other forms of dispute settlement, including gunboat diplomacy and even wars. Its emergence is widely regarded as a positive development; it is used by states and its authority is widely accepted. As former International Court of Justice (ICJ) president Gilbert Guillaume once wrote: ‘Some decades ago the slogan was “Make love, not war”. It could now be “Go to court, not to war”.’¹

A critical juncture?

In her book, The New Terrain of International Law, Karen Alter identifies three ‘critical junctures’ that have shaped the development of the ICs universe: the Hague Peace Conference; the end of World War II/the ‘eruption’ of the Cold War; and the end of the Cold War.² The post-Hague events led inter alia to the establishment of the Permanent Court of Arbitration and the later Permanent Court of International Justice. The political aftermath of World War II led to the establishment of tribunals such as the ICJ, European Court of Justice (ECJ), Inter-American Court of Human Rights (IACtHR), European Court of Human Rights (ECtHR) and the General Agreement on Tariffs and Trade’s (GATT) dispute settlement system. The end of the Cold War led inter alia to the rise in prominence of the Bretton Woods Institutions (accompanied by the establishment of numerous trade and investment tribunals), and an increased international demand for accountability following atrocities in places such as Africa and the Balkans resulted in the establishment of international criminal tribunals.³

In her contribution to this volume, Alter claims that we are currently in the midst of yet another ‘critical juncture’. While previous ‘junctures’ resulted in the proliferation of international courts and were motivated by states’ willingness to entrust at least a portion of their sovereignty to ICs, the current ‘juncture’ is essentially different. Alter defines it as a systemic and broad ‘shared loss of faith in the old order’,⁴ focused mostly on ‘dismantling what exists’.⁵ ‘The dismantling nature of the current critical juncture’, she explains, ‘has put into question the entire international liberal order, which most international courts are part of.’⁶

We broadly share Alter’s assessment of the disruptive potential of current developments for the future of ICs and it seems timely to reflect on some of the challenges that ICs currently face and are likely to face in the years ahead.

We have organised these challenges under three loose headings: regional, institutional and procedural. Our purpose in doing so was to span the perspective from the general to the specific, offering readers a range of bird’s eye and worm’s eye views on the future of ICs. We do not attach special significance to these headings – they are a mere organisational device and few, if any of the essays in this volume fall squarely under one heading or another.

Regional challenges

A key consideration in editing this volume was ensuring, as far as possible, that diverse voices from around the world were represented. While the possible shift away from an ‘international liberal order’ – which Alter examines by reference to developments in the United States, Poland, Hungary and post-Brexit-referendum UK – may be viewed with trepidation in some quarters, in others it could be viewed with indifference or even as a positive opportunity.

So-called ‘new’ and rising non-Western powers are increasingly involved in international adjudicatory processes and their actions are shaping the current ‘critical juncture’ in important ways. Nanying Tao describes in this context the transformation of China’s attitude towards ICs; from a traditional position of hostility to that of an active litigant.⁷ Tao defines China’s current attitude towards ICs as a ‘love-hate’ relationship. On the one hand, China has embraced the use of economic tribunals to advance its economic agendas; it is now one of the most active users of the World Trade Organization (WTO) dispute settlement system and its approach towards the Investor-State Dispute Settlement (ISDS) has been favourable. On the other hand, Tao explains, when it comes to issues of sovereignty and territory, China is still haunted by the view that ‘international adjudication essentially serves Western imperialistic interests’; it is a view that underpins its dismissive attitude towards the South China Sea Arbitration (as manifested in China’s ‘four noes’ strategy: ‘no acceptance, no participation, no recognition and no implementation’).⁸

China is not the only rising giant that has shown ambivalence towards international adjudicative processes. Anand and Singh explain how India’s insistence on a traditional, state-centric approach towards ICs has resulted in a rejection of certain progressive developments, notably regarding the participation of non-state actors, whether as amici curiae (in the WTO) or as litigants (ISDS).⁹ India, the authors point out, is also generally hostile to developments which are perceived as increasing the reach of ICs into matters touching on sovereignty. It therefore insists, for instance, on the exhaustion of local remedies in its Model Bilateral Investment Treaties (BIT) (‘even as the domestic judicial system in India already crumbles under the backlog of cases’¹⁰), and it rejects altogether any prospect of acceding to the Rome Statute of the International Criminal Court.

Brexit also denotes the effort of a state to distance itself from a highly integrated international legal order. Indeed, the prime minister Theresa May has declared that the ambition of the UK is to take back control of its laws by leaving the jurisdiction of the Court of Justice, among other things. Nikos Skoutaris, in his contribution to this volume,¹¹ shows that this may be a much more difficult exercise than proponents of Brexit might have anticipated. A close look at the UK’s Withdrawal Agreement, the EU Withdrawal Act and even the UK’s ‘Chequers’ proposal for a future relationship with the EU indicates that the influence of the Court of Justice of the European Union (CJEU) on the UK legal order is likely to remain significant after Brexit.

Will ICs survive this critical juncture? Alter notes that she ‘do[es] not actually think that the international law project, or most of the existing substantive international law, is itself in question’.¹² ‘International law’, she believes, ‘will endure,’ due to its moral superiority, the fundamental values that it protects and the lack of an alternative.¹³ Other contributors to this volume seem more reluctant to accept the moral superiority of international law as a given and some explicitly link the ‘endurance’ of international law with the willingness and ability of ICs to adapt their institutional practices.

Institutional challenges

Based on an empirical study of states’ declarations, Zuzanna Godzimirska explains that historically, ICs such as the WTO’s Appellate Body and the ICJ have ‘enjoy[ed] substantial levels of support among their Members’.¹⁴ She warns, however, that this state of affairs is rather fragile and even the actions of one state alone (referring to the United States’ attempts to effectively dismember the Appellate Body) could potentially jeopardise this delicate state of affairs.

The critique of Investor-State Arbitrations (ISA, or ISDS) is even more stark. The perception of this dispute settlement mechanism as biased towards wealthy Western investors, conducted in a secretive manner obscured from public scrutiny, has resulted in certain Latin-American states denouncing the ISA and withdrawing from the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Many other states are revising their investment agreements.

Nevertheless, Armand de Mestral and Lukas Vanhonnaeker predict that the ISA will not disappear – ‘the weight of over 3200 BITs and RTAs with investment chapters will be too great to allow this.’¹⁵ In addition, the lack of a viable alternative supports this prognosis. Instead, these contributors argue, ‘the most probable development of the international investment protection, including the ISA, is incremental change of both the substance and the procedure of the system.’¹⁶ One example of such change is the adoption of rules on transparency, such as those adopted under the United Nations Conference on Trade and Development (UNCTAD) or in a variety of ‘new generation’ BITs. A more drastic change would be the arrival of the EU’s proposed international investment tribunal including an appellate level. Such a measure would, it is hoped, increase transparency, consistency and coherence of jurisprudence.

International criminal tribunals have also been subjected to stinging criticism, much of it reflecting North/South tensions. ‘[T]he field of international criminal justice is experiencing a time of change,’ writes Nicholson;¹⁷ the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are closing, a new generation of hybrid courts is emerging, and the International Criminal Court (ICC), perhaps the cornerstone of this system, is beginning to feel the weight of longstanding criticism reflected in the first withdrawals from the Rome Statute. The proliferation of hybrid courts is a countervailing trend, reflecting sentiment that forums like the ICTY and ICC are too remote from the communities most affected by their activities.

The ECtHR also faces a distinctive set of contemporary challenges, in part as a result of a resurgent populism in important Council of Europe (CoE) member states. In his chapter, Bill Bowring reflects on his decades of experience representing claimants against Turkey, Russia and the UK. On the one hand, Bowring’s account documents the story of tenacious individuals who have persevered in the face of long delays and other institutional hurdles; on the other hand, it is a warning of what could happen if powerful states, in the grip of populist and authoritarian politics, disengage from the system. The twin aims of dispensing effective justice to individuals while retaining the ‘buy in’ of key states may not always be mutually compatible, which makes the challenge of ensuring that the ECtHR remains a relevant institution in the twenty-first century all the more formidable.

Amid all the turbulence, the reputation and authority of the ICJ has remained relatively solid. This is arguably due to the ICJ’s traditionally narrow understanding of its own judicial remit. Philippe Sands has noted elsewhere in this respect: ‘The Court had given a reasonably robust Opinion on the illegality of Israel’s Wall, [FN omitted] but in other cases it had skirted around the difficult issues that really mattered, in the face of political divisions.’¹⁸ Sands mentions the Court’s Advisory Opinions regarding Kosovo and the legality of nuclear weapons as examples. One might also refer here to the Court’s reluctance to deal with Russia’s actions in Georgia and the Ukraine. In his contribution to this volume, Francesco Messineo rejects expectations such as those expressed by Sands (and others), according to which the Court should play the role of the ‘ultimate authority speaking “eternal truth” on all questions of internation...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Table of abbreviations
• Acknowledgments
• Contributors
• 1 What does the future hold for international courts?
• 2 Critical junctures and the future of international courts in a post-liberal world order
• Part I Regional challenges
• Part II Institutional challenges
• Part III Procedural challenges
• Index