What Are International Judges For? The Main Functions of International Adjudication
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Description
International judges and arbitrators are commonly portrayed in simple terms: they are interstate dispute settlers engaged in avoiding or deterring threats to peace. This is suggested by the United Nations Charter, other treaties, and scholarship across time. The intertwined functions of settling disputes and maintaining peace, self-evident to those at the turn of the nineteenth century, continue to explain the function of today’s diverse courts and tribunals. Those functions are clearly engaged when International Court of Justice (ICJ) judges settle territorial disputes or those involving the use of force, when the UN Security Council establishes the International Criminal Tribunals for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) pursuant to its Chapter VII powers, or when the International Criminal Court (ICC) is established on the premise that without criminal accountability there can be no lasting peace in societies victimized by mass atrocities. Trade and investment lawyers also rely on the “conflict resolution” rationale. Trade lawyers describe the function of the World Trade Organization’s (WTO’s) dispute settlement system as resolving disputes that historically have led to wider interstate frictions while defenders of the International Centre for Settlement of Investment Disputes (ICSID) argue that investor-state arbitrations are necessary alternatives to “gunboat diplomacy.” Of course, the “dispute settlement” function also has been affirmed by innumerable international judges and arbitrators, most often in the course of disclaiming that they have any role other than applying pre-existing law to settle the narrow dispute before them. The dispute settlement function explains much of what international adjudicators do, but as many contributors to this volume indicate, it is insufficient. To the extent that a theory of adjudication aspires to explain the “functions” of judges or arbitrators, as Besson suggests in her contribution, we might focus, alternatively, on what those who establish courts and tribunals seek to achieve directly in the course of adjudication, on the broader societal goals that such legal proceedings are believed to secure, or adopting a more internal perspective, on what the adjudicators themselves see as their function. In addition, a functional analysis might address only the most generalizable functions shared by all or most of these bodies at the expense of considering the more specialized roles that only some of these courts take on. To add to the terminological confusion, those who address the “systemic” functions of adjudication, at the most general of levels, rarely agree on the descriptive labels they use. In this volume, Besson, for example, distinguishes the “law-identifying” from the “lawmaking” function, indicating that both occur in the course of settling disputes (which she describes as the “law-enforcement” function). She also identifies a distinct “review” function consisting of judicial control over executive action. Elsewhere, von Bogdandy and Venzke have described the functions of courts as settling disputes, stabilizing normative expectations, making law, and controlling and legitimating public authority. At the risk of inspiring more confusion, this chapter seeks to describe the complex and sometimes contradictory systemic aspects of “dispute settlement” as an objective matter, taking into account both the goals of stakeholders as well as the adjudicators themselves. It pays particular attention to the ICJ, international criminal courts and the respective mechanisms used to resolve trade and investment disputes.
Source Publication
The Oxford Handbook of International Adjudication
Source Editors/Authors
Cesare P. R. Romano, Karen J. Alter, Yuval Shany
Publication Date
2014
Recommended Citation
Alvarez, José E., "What Are International Judges For? The Main Functions of International Adjudication" (2014). Faculty Chapters. 63.
https://gretchen.law.nyu.edu/fac-chapt/63
