International Courts: Uneven Judicialization in Global Order
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Description
‘Law without courts’ seemed to Hugo Grotius an entirely coherent approach to the juridification of international relations. The first edition of his Law of War and Peace (De jure belli ac pacis, 1625) reflects an intense commitment to framing claims and rules for conduct outside the state in terms of legal rights and duties, but not to judicialisation, even though arbitration between sovereigns was addressed in earlier works he had read, such as Alberico Gentili’s Law of War (De iure belli libri tres, 1612 [1933]). Yet in modern times international judicialisation—the creation and use of international courts and tribunals—has been not only a significant component of liberal approaches to international order, but for some an indispensable concomitant of juridification. The opening section of this chapter provides an overview of the formation of what are now ten basic types of international courts. The following section offers some balance to the tendencies (implicit in the approach taken in the first section) to acclaim each flourishing legal institution as an achievement and to study only what exists, by considering the marked unevenness in the issues and in the ranges of states currently subject to juridification through international courts and tribunals. The final section addresses the question whether the density and importance of the judicially focused juridification that now exists has implications for politics, law and justice that are qualitatively different from what has gone before. This is explored by examining some of the main roles and functions of international courts, considered not simply as a menu but as a complex aggregate. International courts and tribunals are institutions, and are increasingly analysed as such. This includes basic institutional design, the specified functions and powers of the court, the degree of its embeddedness in related political institutions which may provide support or checks on it, the processes of appointment of the judges and their degree of independence and expertise as well as their socio professional reference groups, the funding and work capacity of the institution in relation to demands on it and its efforts to expand its reach or scale, whether the institution has an endu- ring identity and whether its judges are part-time (as the World Trade Organisation (WTO) Appellate Body is, by design). Some studies focus principally on the institution, and the ways in which the court also acts not judicially but administratively e.g. supervising appointment of defence counsel, or a compensation fund for victims. Explaining why these institutional features are the way they are says much about a particular court: its judgments, its substantive motivations in different cases, and its legal methods. Tribunals develop their own hermeneutics connected with many of these institutional factors—thus the WTO Appellate Body purports to adhere closely to the underlying treaty texts, while the Court of Justice of the European Community (CJEU, formerly ECJ) is more expressly teleological in aiming to achieve the purposes of the EU treaties. It is something of an international law myth that there is one unified approach to interpretation that is embodied in the 1969 Vienna Convention on the Law of Treaties and shared amongst all tribunals. The sociology of those practising in particular courts, and the wider constituencies for those courts, are also important. These institutional questions cannot, however, be considered further in the confines of this chapter. This chapter will not propose a tightly specified definition of ‘international court’. ‘Court’ undoubtedly exerts some pull as a regulative idea that is as an ‘ideal type’ which there is cognitive and sometimes political pressure for judicial-type institutions to approximate both in their design and in their operations. Mani (1980) put this in terms of rights to be heard, to a duly constituted tribunal free from corruption and fraud, to due deliberation, and to a reasoned judgment (which should more stringently be expressed as ‘reasoned judgment in accordance with the applicable law’). But it is doubtful that a single sharply delimited concept of ‘court’ prevails in international law practice. The term ‘international’ is used here to indicate courts created by intergovernmental agreement (including agreements made within, or by, intergovernmental organisations), or by agreement between a national government and a foreign private entity, where the court is legally situated either fully or partly outside the national juridical and governmental system of any state.
Source Publication
Cambridge Companion to International Law
Source Editors/Authors
James Crawford, Martti Koskenniemi
Publication Date
2012
Recommended Citation
Kingsbury, Benedict, "International Courts: Uneven Judicialization in Global Order" (2012). Faculty Chapters. 978.
https://gretchen.law.nyu.edu/fac-chapt/978
