28 Aug Virtual Roundtable on International Tribunals — Kickoff
As Julian Ku announced a few days ago, over the next few days Opinio Juris will be hosting a virtual preview of a Roundtable on “the Allocation of Normative Power to and among International Tribunals” that will be held at next weekend’s APSA Annual Meeting in Philadelphia. Participants are: Roger Alford, Allison Danner, Jeffrey Dunoff, Laurence Helfer, Julian Ku, Thomas Lee and Kal Raustiala. This group will provide a kaleidescope of views and analyses, posted each day, and I’m grateful that Opinio Juris has provided us with this opportunity to perhaps make the roundtable a bit more meaningful than the standard 90 minute panel, at a conference that has over 700 panels. Myself, I’m just the convener, and below I’ve prepared an overview of the roundtable’s topic, basically encompassing three areas:
1. The allocation of rule-making power between international judiciaries, on one hand, and international political fora, on the other.
2. The allocation of jurisdictional powers between international tribunals among themselves.
3. The allocation of rule-determination and dispute settlement powers between national courts, on one hand, and international courts, on the other.
Some more thoughts on these areas of debate follow. Roundtable participants are invited to reflect on these and related questions, on the interrelationship between the three axes of the problem, and/or on specific expressions or aspects of the issue that they have dealt with in their research. I’m looking forward to some interesting discussion!
First, the allocation of rule-making power between international judiciaries, on one hand, and international political fora, on the other. Some international tribunals, most notably the WTO Appellate Body, have been accused of ‘judicial activism’, of making international law where they had specifically been entrusted only with its application. Other bodies such as the European Court of Human Rights and the ad hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia have also demonstrated a willingness to adopt interpretations of procedural and substantive questions that may be perceived as expanding and deepening their own powers, perhaps at the expense of political authority. Even if direct conflict between judicial and ‘legislative’ branches (such as when a tribunal is required to consider a question pending before a political body, or to rule on the legality of a political organ’s actions) is avoided, these developments may signify a general shift of normative power from political deliberation to legal fora, that also changes the way that international rules are made.
Indeed, the problem of political-judicial balance in international governance is not new, having arisen in the past most clearly in the UN system in the form of tensions between the ICJ and the UNGA/UNSC (e.g., in the Namibia and Lockerbie episodes). However, the increased number of international tribunals, their enhanced scope and specialized nature, and the tendency to strengthen their jurisdiction towards compulsory or similar degrees, combine to amplify questions that in the past were of only peripheral interest to international lawyers and political scientists. The contemporary debate has an obvious ‘constitutional’ dimension, reminiscent of analogous questions in the domestic sphere, but in international law and politics, there is an additional dimension, no less important, insofar as the international ‘legislature’ or ‘executive’ is regarded as state-driven and based on specific consent, whereas the emerging international judiciary represents an international level of governance that although established by consent, has the potential to exert normative power that is independent of the specific will of states, both severally and jointly. Are international tribunals inevitably supranational creatures? And if so, to what extent do they face a problem of legitimacy by virtue of their inherent non-democratic character, that in the international arena is not balanced by elected lawmakers? And conversely, might judicial normative power actually have the advantage of facilitating international rule-making where the political process fails? Also, might this shift in rule-making loci present an opportunity for weaker states in the system to influence norms and their development, that the political system has not granted?
Second, the allocation of jurisdictional powers between international tribunals among themselves. A prime institutional expression of the contemporary ‘fragmentation’ of international law is the problematic inter-relationship between international tribunals of ‘competing’ or ‘concurrent’ jurisdiction. To be sure, this field of contention is closely related to questions relating to the law applicable in each forum (the question of ‘sources of law’) and to the substantive relationship between different areas of law (such as international human rights law and international humanitarian law, or international sustainable development law and international health or food safety law, or human rights and intellectual property law), and so can be considered in isolation from these only with difficulty. Yet the lawyer’s intuitive approach to these questions is to employ traditional doctrinaire tools such as comity and lis alibi pendens. These instruments, however, analogous to solutions provided in international private law and domestic law to pathologically analogous problems, may risk promoting coherence and/or diversity that is devoid of the proper social and/or political context of international relations, and hence may be unsustainable in the long run. It is suggested that a deeper structural analysis is necessary.
Notably, problems arising under this heading are not monolithic. Inter-jurisdictional problems arise in different types of cases and disputes. There are those that involve diverging areas of international law applied by different tribunals, for example, trade and environment (the EC-Swordfish case, with WTO confronting ITLOS); different tribunals applying essentially the same body of law (ECJ and PCA in the Ijzeren Rijn cases); different tribunals in the same area of law but with different sources (Mexico-Soft Drinks and a counterfactual NAFTA Chapter 20 panel); different tribunals applying essentially the same law to different cases (bilateral investment treaty arbitration panels), and even international panels applying domestic as well as international law to the same cases (WTO and NAFTA Chapter 19 panels in the Softwood lumber cases). Can such different cases, which such different political contexts, be guided by similar principles?
Third, the allocation of rule-determination and dispute settlement powers between national courts, on one hand, and international courts, on the other, seized of related questions. Increasingly, both national and international courts are faced with the interpretation and application of identical or similar questions of international law in sensitive cases such as the applicability and of international humanitarian law, as in Hamdan and even more explicitly, in the ICJ and the Israeli Supreme Court rulings relating to the construction of the West Bank separation barrier. In legal terms, these situations raise doctrinaire constitutional questions regarding the status of international law in domestic systems, whether monist, dualist or hybrid, but more structural issues are also at stake. Can international law be regarded as a valid normative system if its interpretation is disparate and left to the determination of judicial agents of its subjects? Can the international system establish and incorporate principles of subsidiarity, harmonizing the national and international judicial mechanisms?