1. The traditional one-dimensional view and its problems
This contribution presents international judicial institutions as multifunctional actors against the background of a traditional understanding, which sees just one function: settling disputes. The traditional, one-dimensional understanding is deficient as it eclipses other important functions that many international courts do actually perform today. As we will show, it also underrates legitimacy problems. These shortcomings not only are a theoretical problem, but also stand in the way of realizing international adjudication's full potential. Since the traditional view can neither capture the relevant dimensions of contemporary judicial practice nor keep pace with the thrust of its growth, it has an unduly narrow view on legal interpretation, might mislead when it comes to policy and design choices, and obstructs a clear outlook on international courts as institutions of public authority. Recognizing law-making as a function of international courts, for example, would probably weigh in favour of interpreting the rules on third-party intervention more permissively when compared to an understanding that is exclusively focused on settling the dispute between the parties. Similarly, different demands for judicial interpretation and argumentation arise if the understanding of international courts embraces the systemic contributions they provide when they reassert law's validity and stabilize normative expectations.
The view of the functions of international courts needs to be reformulated in times of global governance and in light of the remarkable trajectory of international adjudication over the past two decades. New significant institutions have emerged and established ones have come to breathe new life.Footnote 1 This change in quantity has gone hand in hand with a change in quality precisely because of the multifunctionality of international adjudication. In order to appreciate international adjudications’ many contributions to social interaction, we identify three more functions beyond dispute settlement. International courts stabilize normative expectations, which includes the reassertion of international law's validity and its enforcement; they develop normative expectations and thus make law; and they control and legitimate the authority exercised by others. Against the background of international courts’ multifunctionality, other legitimatory resources need to be explored to complement state consent as a basis of international judiciary practice. Certainly, not all decisions serve all functions equally at all times and functions can even stand in tension to one another. But as institutions in the context of global governance in times of increased globalization, all the functions we mentioned are relevant for assessing the practice of international courts. A multi-dimensional view of international adjudication shows that international courts have overall become institutions that exercise public authority and demand a modus of justification that lives up to basic premises of democratic legitimacy.Footnote 2 International courts, broadly understood so as to include institutions such as World Trade Organization (WTO) panels and treaty-based arbitral tribunals,Footnote 3 should be placed within the broader field of international institutional law and not be treated under a separate and detached title of dispute settlement.Footnote 4
In contrast, many scholarly treatises seem to take it as obvious that international courts are exclusively, or at least predominantly, instruments for settling disputes and treat them under such a heading in the same breath as good offices and mediation.Footnote 5 In textbooks as well as in great works of the discipline, they usually enter the scene in a late chapter as one means for settling dispute among others.Footnote 6 Such an understanding is inspired by, and corresponds with, positive law where Article 33 United Nations Charter (UNC) illustratively places arbitration and adjudication in a queue with mechanisms for the ‘pacific settlement of disputes’ (Chapter IV UNC). But this approach to international adjudication is out of sync with the recent developments and does clearly not hold across the breadth of international judicial institutions. That is clear to see if one only considers the field of international criminal law where truly little would be understood from the perspective of dispute settlement.Footnote 7
The functional myopia comes with myopia in terms of international courts’ legitimacy. The traditional view tends to focus on the consent of disputing states alone.Footnote 8 Such a focus certainly holds a lot of purchase and resonates with the image international adjudicators themselves draw of their practice.Footnote 9 The Appellate Body of the WTO, for instance, maintained in this vein that ‘[t]he WTO Agreement is a treaty – the international equivalent of a contract. It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain.’Footnote 10 It would be wrong, to be sure, to deny that the consent of states continues to be a key source of legitimacy. But in face of other functions and in light of international courts’ burgeoning public authority, it is necessary to try and tab further resources of legitimacy. When we set out to clarify international court's distinct functions beyond the settlement of disputes, we do so not least to sharpen normative questions. We wish to stress that a functional analysis does itself say little about whether practices are well justified or not. But it helps to refine criticism.
In sum, this contribution pursues three main objectives. The first is analytical, aims at a better grasp of reality, and specifically aspires to better understand nuances and differences between judicial interpretations and institutional practices. Second, it wants to sharpen normative questions and, third, it wishes to contribute to a more solid basis for interpretative choices, especially as they pertain to international courts’ procedural law. With these objectives the contribution starts out by presenting four key functions that international adjudication can perform (section 2). It then turns to basic understandings of international courts that further clarify the view on their functions and help to explain different emphases. It presents international courts respectively as instruments of the parties in a state-centred world order, as organs of a value-based international community, and as institutions of specific legal regimes (section 3). While significant, each understanding faces distinct problems against the background of which we sketch the contours of a new paradigm for the study of international courts as actors exercising public authority (section 4).
2. The functions of international courts
It is common and good practice in legal research to study a phenomenon by way of functional analysis, i.e. researching how it contributes to orderly and peaceful social interaction. The study of domestic courts in this light has produced many valuable insights on which we can build.Footnote 11 When a court ‘decides a case’ and ‘applies the law’, this usually has a series of different social consequences, which can be understood as functions. But according to a prominent strand in functional analysis, there can only be one single function of any system or institution.Footnote 12 One could then say on an abstract and vague level that international courts’ function is adjudication. But that hardly satisfies anyone who wishes to grasp the phenomenon more precisely, and it immediately leads to spelling out further dimensions of such a function. Like us, many authors thus allow the plural ‘functions’ in order to capture the distinct social consequences of adjudication.Footnote 13 Furthermore, functions need not and should not be confined to what institutions are legally mandated to do. Functions can also stand in tension to one another and are usually weighed differently by different institutions, and balances may shift over time.Footnote 14 Besides, we reiterate that a functional analysis is distinct from a normative assessment.
It is certainly a grand question how the framework of social interaction should be understood. The horizon of domestic courts is usually set with the confines of the specific polity and the individuals that it harbours. Formulas such as ‘in the name of the people’ or ‘in the name of the king’, which many domestic courts around the world recite at the beginning of their judgments, convey precisely this reference point as the relevant whole.Footnote 15 The vantage point for a functional analysis of international courts is in comparison still harder to gauge. Conspicuously, international courts do not know any formula equivalent to that used by many domestic courts. This void reflects a foundational uncertainty: should international courts decide in the name of the states that created them, in the name of the international community, in the name of a specific legal regime, or maybe even in the name of transnational or cosmopolitan citizens? In spite of this foundational uncertainty, which we pick up in section 3, it is all the same possible to identify and distinguish four main functions.
2.1. Settling disputes
A first main function is and remains that of settling disputes in individual cases. It leans on the hope that the authority of judicial decisions leads to an end of a dispute that might otherwise even unleash a looming potential for violent confrontation.Footnote 16 While this one-dimensional view is insufficient, the function of settling disputes certainly remains most salient. International courts are mechanisms for the ‘pacific settlement of disputes’ (Chapter VI UNC) and provide ‘an alternative to the direct and friendly settlement of such disputes between the parties’.Footnote 17 Also Article 38 ICJ Statute provides plainly that the court's ‘function is to decide . . . disputes as are submitted to it’.Footnote 18 Significantly, the ICJ stated that ‘the function of this Court is to resolve international legal disputes between States . . . and not to act as a court of criminal appeal’.Footnote 19 While there is no doubt with regard to the court's statement about what it is not, the singular function of dispute settlement is misleading. If one analyses the practice of an institution or a concrete decision in light of one function alone, then its full meaning and relevance may well be lost. A famous case clarifies this handily by way example.
2.2. Stabilizing normative expectations
It is doubtful whether the ICJ's Nicaragua judgment contributed to settling the dispute between Nicaragua and the United States.Footnote 20 The decision in this case maybe even had a negative effect because it prompted the United States to withdraw its unilateral recognition of the court's jurisdiction.Footnote 21 But if the decision is considered in light of the contribution it has made by stabilizing normative expectations – a second main function of international courts – then a different picture starts to emerge. The judgment reasserted the validity of one of international law's cardinal norms – the prohibition of the use of force – in face of the contrary practice of the two superpowers at the time. Feeding into the general legal discourse, the decision affirmed international law as an order that promotes peace and does not bow to the powerful, even if it might not have settled the concrete dispute at hand.
The Nicaragua judgment supported law's normativity and stabilized normative expectations when it came to the use of force. The decision discouraged the opposite cognitive modus advocated by the Greek historian Thucydides, according to whom ‘the strong do what they can and the weak suffer what they must’.Footnote 22 It is a widely shared position of otherwise conflicting strands of legal theory that this is one of law's cardinal functions. It supports normative expectations, particularly in case of their violation, and thereby makes a crucial contribution to orderly social interactions.Footnote 23 It would be odd to place this contribution beyond the court's functions, as this is precisely what the Nicaragua judgment is most famous for. The shortcomings of an unbalanced focus on dispute settlement and the importance of stabilizing normative expectations are both plain to see when it comes to international criminal courts and tribunals. There was simply no dispute between the accused Mr Tadić and the prosecutor Carla del Ponte that the International Criminal Tribunal for the Former Yugoslavia (ICTY) settled.Footnote 24
International criminal justice rather points to the stabilization of normative expectations not only through restating the law, but also through mechanisms of enforcement and even punishment. True enough, when compared to the domestic level, there are indeed few coercive mechanisms in place in the international order that could practically be used to enforce compliance with international decisions. According to Article 94(2) UNC the Security Council could take coercive measures if disregard for decisions of the ICJ threatens international peace and security.Footnote 25 In practice, however, non-compliance with judgments of the ICJ or most other courts rarely draws measures of coercion in response.
But it would be much too narrow to confine enforcement and coercion to compulsory power. International courts are frequently embedded in contexts that may offer considerable mechanisms in support of judicial decisions. The Ministerial Committee of the Council of Europe oversees the implementation of decisions of the ECtHR;Footnote 26 in the framework of the WTO, members may resort to countermeasures once their claims have succeeded in adjudication;Footnote 27 and arbitration awards of ICSID panels are enforceable in domestic courts as if they were rendered by the highest level of jurisdiction in the domestic system.Footnote 28 Other forms of enforcement that work via the authority of courts and their standing in international legal discourse may be no less decisive and incisive.Footnote 29 Not least, contravening an international judgment frequently translates into a loss of reputation of practical significance.Footnote 30
2.3. Making law
The Nicaragua judgment did not only contribute to stabilizing normative expectations, but also to what often is called the ‘development’ of international law.Footnote 31 The judgment has continuously supported legal arguments which endorse a wide interpretation of the prohibition of the use of force and a narrow reading of the right to self-defence. It ‘thickened’ international law by adding to its normative substance.Footnote 32 Some institutions are specifically mandated along the lines of Article 3(2) of the Dispute Settlement Understanding (DSU) of the WTO to ‘provid[e] security and predictability’ in international law. The Appellate Body leaned on this provision to argue that its earlier decisions need to be taken into account, where relevant, because they ‘create legitimate expectations’ among members and market participants.Footnote 33 The development of normative expectations is thus a core function of international courts.Footnote 34 This dimension of judicial practice can best be understood as generating new legal normativity or simply as law-making. Strictly speaking, it is inevitable that statements about what international law requires also, to varying degrees, contribute to its making, something that judicial decisions’ classification as ‘subsidiary means for the determination of rules of law’ (Article 38(1)(d) ICJ Statute) of course overshadows.Footnote 35
The law-making effect of judicial decisions has two closely intertwined sides to it that should be distinguished. One concerns the making of law in the particular case between the parties and stems from applying pertinent norms in view of the concrete case.Footnote 36 The other dimension of judicial law-making, the one at stake here, reaches beyond the case at hand.Footnote 37 Courts are adding to the law with the very decision, the justification that carries the decision (ratio decidendi), as well as with everything said on the side (obiter dictum). As a matter of fact, it seems that a number decisions today candidly aim at influencing the general legal discourse by establishing abstract and categorical statements as authoritative reference points for later legal practice.Footnote 38 Judicial law-making is an inevitable part of adjudication as justifying a decision is a legal requirement.Footnote 39 But for many reasons, including more institutions with compulsory jurisdiction and generally more use of international adjudication, this dimension of international judicial practice has gained in importance in the last decades. Many courts now develop case law. Footnote 40
Judicial law-making is different to legislation through formal sources, to be sure.Footnote 41 Judicial decisions impact the legal order differently than new legal texts that enjoy the blessing of sources doctrine. Judicial decisions work as arguments and influence the law through their impact in the legal discourse. Their law-making effect, in particular in its general and abstract dimension that goes beyond the individual case, does not only depend on voluntas but also on its ratio and judicial decisions’ reception in legal discourse. But international courts’ decisions by and large enjoy an exceptional standing in semantic disputes about what the law means and thus contribute to its making.Footnote 42 Notwithstanding the mantra that international law knows no doctrine of stare decisis, courts regularly use precedents in their legal argumentation and at times engage in detailed reasoning on how earlier decisions are relevant or not.Footnote 43 Judicial precedents redistribute argumentative burdens in legal discourse and generate legal normativity. Overlooking or even negating this law-making function means missing out on an important aspect of the dynamics of the international legal order. Accordingly, the procedural law of international courts should be interpreted and developed in a way that also takes into account their law-making function.Footnote 44
2.4. Controlling and legitimating public authority
A further function comes into view if one considers international courts with respect to other institutions of public authority that call for control and legitimation, i.e. in a separation-of-powers or checks-and-balances perspective. In fact, signalling credible commitments and thus overcoming problems of collective action is one of the main reasons for member states to delegate authority to international courts in the first place, subjecting themselves and others to judicial control.Footnote 45 In a vertical dimension, international courts control domestic authority against yardsticks of international law.Footnote 46 International human rights courts provide the classic example,Footnote 47 but other courts have joined them. International trade law, strongly shaped by judicial practice, for example, contains detailed prescriptions for domestic regulators. Notably, domestic provisions that are deemed to contradict international trade law can be challenged by a member of the WTO before they have been applied and without a burden on the claimant to show an individual legal interest in the case.Footnote 48 The function of controlling domestic public authority also applies to awards rendered by ICSID tribunals. Investment tribunals often assume the role of domestic administrative or even constitutional courts, which are possibly deficient or biased in the host country.Footnote 49
In order to refine, but also to deepen, their control function, many international courts have shaped doctrines such as proportionality analysis, which stems precisely from administrative and constitutional justice.Footnote 50 With such doctrines international courts can closely control domestic regulatory activity. They move into the space of political decision-making that has, at least traditionally, been reserved for administrations or legislatures.
Controlling domestic authority contributes in many constellations to its legitimation. The review of public acts against general standards by an independent institution is one of the most powerful legitimating mechanisms. It is for this very reason that many domestic constitutions attribute a specific domestic role to international treaties and their courts, in particular in the field of human rights protection.Footnote 51 Moreover, some courts develop procedural standards for fairer domestic administrative and regulatory processes and thus contribute to the legitimation of domestic public authority that impacts outsiders.Footnote 52
The horizontal control and legitimation of authority exercised at the international level is weaker. As of now, international courts hardly have a role within the institutional order of international law in terms of a system of checks and balances.Footnote 53 While a possible check on the Security Council by judicial review of the ICJ has been subject to much debate, the Court has so far refrained from embracing such a role.Footnote 54 But there are some other instances that go in this direction. The ICTY at least reviewed the legality of the resolution to which it owes its existence,Footnote 55 and the Inspection Panel of the World Bank, as well as other internal administrative tribunals, shows potential for control and legitimation.Footnote 56 Notably, the ICJ's advisory jurisdiction was meant precisely ‘to serve as a method of dealing with constitutional questions arising in a future general international organziation’.Footnote 57 More fundamentally, international courts can contribute to the legitimacy of the legal order of which they form part. In this vein, finally, it is possible to see that the Nicaragua judgment contributed to vesting the international legal order in general with legitimacy, especially in the eyes of newer states and within a broader international community.Footnote 58
3. Functions and basic understandings of international courts
If there is so much evidence for the multifunctionality of international courts, the question arises why the traditional one-dimensional view is still so prominent. Various elements contribute to a tentative explanation. One reason is that the discourse on the functions forms part of the general doctrine of international law, and general doctrines usually evolve at glacial speed. Another element is that prevailing doctrine is largely built on the example of the International Court of Justice (the ‘World Court’), whose paradigmatic role for today is questionable. Ultimately and critically, we argue that the view on international courts’ functions is fundamentally informed by broader normative understandings of the international judiciary, and, in fact, of the international order generally. The traditional emphasis on the dispute settlement function has gone hand in hand with a basic understanding of international courts that pictures them as instruments in the hands of the parties in a state-centred world order (subsection 3.1). A reappraisal of the functions leads us to identify and revisit broader basic understandings. Two more such understandings are well established and of particular importance today. Both allow for a multifunctional analysis. With early roots, a second basic understanding sees international courts as organs of a value-based international community (subsection 3.2). A third understanding has grown in the wake of globalization and views international courts as institutions of specific legal regimes (subsection 3.3). The contours and problems of each understanding lead us in section 4 to sketch a new paradigm for the study of international courts that appreciates them as actors exercising public authority.
3.1. International courts as instruments of the parties
The monofunctional view of the international judiciary is a corollary of an understanding that sees international courts as instruments in the hands of the parties for the settlement of concrete disputes in a state-centred world order. In this understanding, courts decide disputes in the name of the states that created them and courts’ proper role is to stick to this function. This understanding connects to the origins of adjudication, which lie in the move of two parties to involve a third actor in the resolution of their dispute.Footnote 59 Oftentimes judicial processes were the first institutions of a society tasked with deciding disputes on the basis of generally shared normative standards.Footnote 60 The decisive step lies in transforming a bilateral, or dyadic, dispute between the parties into a triadic process in which the decision of a third actor is supposed to undercut the dynamics of action and retaliation and to settle their squabble.Footnote 61
Sticking to this function, and keeping a low profile, might be seen as crucial for courts’ institutional success in the rough environment of international relations. Such an understanding has a long pedigree. In a treaty of 445 bc Athens and Sparta agreed not to go to war as long as one of the parties wished to bring the controversy before an arbitral tribunal. When a dispute erupted, Athens suggested bringing the case to arbitration in accordance with the treaty. But Sparta instead attacked Athens and suffered a bitter defeat. The widespread opinion held that Sparta lost because by disregarding its obligation to resort to arbitration it had provoked the wrath of the gods. In another instance, the roles were reversed, Sparta stood on the side of the law and defeated Athens, which was again seen as the just punishment of the gods.Footnote 62 Against this background, the already mentioned Thucydides came to the conclusion that it is impossible to attack a party which has offered to submit the dispute to judicial settlement.Footnote 63 Settling the dispute and nothing else was the task of the tribunal.
Modern international judicial institutions developed from a somewhat similar context,Footnote 64 when the two Peace Conferences 1899 and 1907 established the Permanent Court of Arbitration (PCA).Footnote 65 Most delegates had a state-centred conception of international order, which is rather hostile to an autonomous international institution with functions other than settling disputes. The same held true after the First World War when state representatives established the Permanent International Court of Justice (PCIJ) in 1920.Footnote 66 The prevailing state-centred understanding, epitomized in the PCIJ's Lotus decision, only allowed a rather weak institution without compulsory jurisdiction and no real role beyond the settlement of a dispute.Footnote 67 Max Huber, president of the PCIJ from 1925 to 1927, expressed the first basic understanding in an ideal fashion when he found as sole arbitrator in the Islas of Palmas case that
[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. . . . [T]his principle of the exclusive competence of the State . . . [is] the point of departure in settling most questions that concern international relations.Footnote 68
This understanding has shaped ideas about international adjudication up to the present day and the International Court of Justice (ICJ) continues to breathe its air. The Kosovo Advisory Opinion of 2010, for example, testifies, also according to Judge Simma, to a still-prevailing contractualist and anachronistic, in his view, conception of international law that does not seem to have changed since the days of the Lotus judgment.Footnote 69 While members of the United Nations are obliged to settle their disputes peacefully and the Charter calls the ICJ the ‘principal judicial organ of the United Nations’ (Article 92 UNC), the ICJ's role in the pacific settlement of disputes is mentioned only marginally in Article 33 UNC, where judicial settlement is just one mechanism of dispute resolution among others. The main responsibility for ensuring international peace rests with the Security Council.Footnote 70 This constellation nourishes an understanding of the ICJ that places it squarely within the first paradigm.
The understanding of the Court as a mere instrument of dispute settlement in a state-centred world order has informed many of its decisions. We offer but a few prominent examples and pointedly show how other courts diverge. In the Corfu Channel case between the United Kingdom and Albania the ICJ clarified, for instance, that only the individual consent of the parties could establish its jurisdiction and did not follow the submissions of the UK to rely on a Security Council Resolution as a basis for jurisdiction.Footnote 71 Such an avenue is now recognized in the Rome Statute for the International Criminal Court,Footnote 72 but it is not an option for the ICJ.
How the bedrock principle of consensual rather than compulsory jurisdiction plays out is also illustrated by the Court's doctrine of a necessary third party, which demands that it declares a case inadmissible when it is required to pass judgment on the actions of a third state that has not accepted its jurisdiction.Footnote 73 The Court thus decided that the East Timor case between Portugal and Australia was inadmissible because it was inevitably, according to the Court, to also touch on the legality of Indonesia's invasion of East Timor while Indonesia had not recognized its jurisdiction. It did not come to bear on the Court's decision that Portugal accused Australia of breaching an erga omnes obligation springing from the right to self-determination of the East Timorese people.Footnote 74 A deeply rooted contractual understanding of international law even informed its opinion on the Genocide Convention when it held that a party having made impermissible reservations is not bound by the Convention – no will, no obligation.Footnote 75 As we shall show in a moment, the ECtHR later decided the exact opposite with regard to the effect of territorial restrictions that Turkey had made in relation to its submission to the European Convention of Human Rights.
The issue of amici curiae submissions provides another example of how international courts are understood as instruments in the hands of the parties for settling disputes in concrete cases.Footnote 76 In one of the ICJ's first cases, its registrar rejected completely the motion by an NGO seeking to submit its opinion in writing and to present its view orally in contentious proceedings.Footnote 77 The same NGO later received a positive response from the registrar and was allowed to appear as amicus curiae in the advisory proceedings concerning the Status of South-West Africa.Footnote 78 Ever since the Gabcikovo-Nagymaros case it is also clear that amicus curiae briefs may be introduced as part of the submissions of the disputing parties.Footnote 79 Beyond this minimal common denominator there remains considerable disagreement within the ICJ on how to deal with amicus curiae briefs. Opposing opinions have so far impeded developments as they have taken place in other judicial institutions.Footnote 80 Former President Gilbert Guillaume stated that states and inter-governmental institutions should be protected against ‘powerful pressure groups which besiege them today with the support of the mass media’. For that reason, he argued, the ICJ should ward off unwanted amicus curiae submissions.Footnote 81 This is not necessarily so. The WTO has warmed up to the idea that maybe amici curiae should have a role to play.Footnote 82 In the path-breaking US Shrimp case, the Appellate Body argued that
[t]he thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts.Footnote 83
The state-centred understanding not only informs the ICJ. It is also well visible in other institutions, for example in decisions by arbitral tribunals in the framework of the Permanent Court of Arbitration (PCA).Footnote 84 A common understanding is sketched in Romak v. Uzbekistan, an investment treaty arbitration, in which the tribunal found that
[u]ltimately, the Arbitral Tribunal has not been entrusted, by the Parties or otherwise, with a mission to ensure the coherence or development of arbitral jurisprudence. [Its] mission is more mundane, but no less important: to resolve the present dispute between the Parties in a reasoned and persuasive manner, irrespective of the unintended consequences that [its] analysis might have on future disputes in general.Footnote 85
The tribunal did not at all see itself as contributing in any other fashion to social interactions. Other tribunals in its framework have recognized at least a contribution to the maintenance of peace.Footnote 86
But by and large, even institutions that are above all geared towards settling specific disputes in an arbitral fashion do frequently contribute to general legal developments. If only they publish their reasoned decisions, this is hardly avoidable. The Iran–United States Claims Tribunal – initially accused of not living up to the task of stabilizing normative expectationsFootnote 87 – actually ended up clarifying international law pertaining to issues of nationality and expropriation. It pronounced on general issues of interpretation and inevitably fed into the broader legal discourse.Footnote 88 As typical cases of dispute settlement in concrete cases, arbitral and claims tribunals already indicate how the one-dimensional view eclipses part of the social consequences of international adjudication.
3.2. International courts as organs of a value-based international community
The second basic understanding pictures courts as organs of the international community, tasked mainly with protecting the community's core values and interests.Footnote 89 They decide in the name of the international community rather than in the name of states. This second view is already amenable to a multifunctional analysis opening up to dimensions of judicial practice beyond the settlement of disputes. Of course, international courts continue to settle disputes, but states are now seen as members of the international community and international adjudication needs not only to consider the bilateral relationships between them, but also to pay regard to the interests of the community. It is easy to depict the stabilization of normative expectations, law-making, and the control and legitimation of public authority as activities in the interest of the community.
The understanding's roots lead to conceptions of the jus gentium that lie close to natural-law theories and to Christian doctrine based on the idea of a society which spreads globally and does not halt at the borders of particular polities.Footnote 90 In this tradition, activists of various peace movements shared a belief in the possibilities of universal order and provided important impulses for the development of modern international judicial institutions towards the end of the nineteenth century.Footnote 91 With similar fervour, a group of eminent international lawyers founded the Institut de droit international in 1873, committed to advancing international arbitration as a means for ensuring international peace.Footnote 92 The institute's Statute formulates its aim as ‘favouring the progress of international law by becoming the organ of the conscience of the civilized world’.Footnote 93 The international community – the civilized world in the vernacular of the nineteenth century – was placed in a position of legitimating international law and international judicial practice.Footnote 94
While the outcomes of the peace conferences in The Hague testify to the preponderance of the first basic understanding, the second paradigm was certainly present.Footnote 95 James Brown Scott, admirer of the international legal scholarship of late scholasticism, argued compellingly that the PCA was neither permanent, because tribunals had to be established for every case anew, nor a court at all, in his view, because its members were diplomats rather than judges.Footnote 96 In the aftermath of the Peace Conferences, others advocated stronger courts as organs of the international community and they frequently stressed the importance of the judicial development of international law. Only if international law were enriched by judicial practice could it properly contribute to the maintenance of international peace. Sporadic arbitration was critiqued as unsuited for that purpose. For Hans Wehberg, a German scholar linked with peace movements, the formula for peace was clear: ‘More development of international law through international decisions!’Footnote 97 In his argument, as in others, the function of generating and stabilizing normative expectations was clearly articulated for international courts and justified by the aim of ensuring peace.Footnote 98 For commentators in this strand of thinking, the creation of the PCIJ marked no less than ‘the advent of a new era in world civilization’.Footnote 99 And complementary to a prevailing state-centred ethos, the PCIJ did indeed sometimes act as a community institution to contribute to the dynamic development of international law.Footnote 100
Such a complementary and competing perspective also finds support in the practice of the ICJ and explains its designation as the ‘world court’.Footnote 101 Like the PCIJ, the ICJ presents itself not only as an instrument for the settlement of disputes in the hands of states but also, if not as an organ of the international community, then at least as an organ of international law. Already in Corfu Channel, the court also saw itself in the role ‘to ensure respect for international law, of which it is an organ’.Footnote 102 It is also this community-oriented perspective that best explains its stance in the Oil Platforms case, where it ultimately lacked jurisdiction but did not let go of the opportunity to recall and foster the reasoning of its Nicaragua judgment.Footnote 103 Here, as in other cases, separate and dissenting opinions show how the two different understandings tug and pull on the Court. When it comes to its advisory jurisdiction, the Wall opinion contrasts with its stance in Kosovo and illustrates how the Court contributes to the development of international law, above all in its aspiration to ensure international peace and human rights.Footnote 104 In short, while the state-centred understanding does by and large prevail in the ICJ, there are all the same elements that speak in support of the second basic understanding.Footnote 105 Antônio Augusto Cançado Trindade looked back at the practice of the Court as an organ of an international community under the heading of ‘International Law for Humankind: Towards a New Jus Gentium’.Footnote 106 Now a member of the Court, his separate opinions steadily formulate in practice a view that is inspired by a value-based international community. The tradition of universalism as it developed from late scholasticism is well alive.
The traditional one-dimensional view of international judicial practice clearly breaks down if cast onto younger international institutions in the field of human rights or international criminal law. From the outset, the European Court of Human Rights (ECtHR) was supposed to act as a strong institution to ensure respect for human rights on the Continent.Footnote 107 In early cases, state representatives sought to limit the reach of the Convention and of judicial control, arguing inter alia that as an international treaty placing limitations on state sovereignty, the Convention should be interpreted restrictively.Footnote 108 But the ECtHR developed a strong line of jurisprudence that rejects such arguments and instead emphasizes the goal of effective rights protection. It presents the Convention as a ‘living instrument’ which needs to be interpreted in light of new developmentsFootnote 109 – a euphemism for the law-making function. In direct contrast to the ICJ's advisory opinion in Reservations to the Genocide Convention, the ECtHR held in 1995 that, if substantive or territorial restrictions on the applicability of the Convention mechanism were allowed, this ‘would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order’.Footnote 110 As a consequence, the defending state, having made such reservations, was bound without the benefit of the reservations rather than not bound at all, as was the position of the ICJ. Over the course of its activity, the ECtHR has significantly developed the European Convention and coated its text with thick layers of meaning. The Court itself clearly sees its function ‘to elucidate, safeguard and develop the rules instituted by the Convention’.Footnote 111 Decisions of the Inter-American Court of Human Rights (IACtHR) paint a similar picture while the Court dives even deeper into the constitutional orders of member states by obliging domestic courts to engage in judicial review of national law against standards of the American Convention on Human Rights.Footnote 112 The IACtHR has decisively asserted all the functions we have identified, for example, with its consequential decisions on the impossibility of amnesties in cases of human rights violations.Footnote 113
Judicial institutions in the field of international criminal law are also supposed to safeguard the fundamental values of the international community and little, if anything, would be understood from the traditional one-dimensional point of view.Footnote 114 The International Criminal Tribunal for the Former Yugoslavia (ICTY) is charged with prosecuting perpetrators of international crimes, thereby contributing to restoring peace, and preventing such crimes in the future.Footnote 115 It has crafted a rich body of case law that has considerably developed both procedural and material criminal law.Footnote 116 Of central importance in the development of the law has been the Appeals Chamber, which has effectively vested earlier decisions with precedential force. ‘[T]he need for coherence is particularly acute’, it held, ‘where the norms of international humanitarian law and international criminal law are developing.’Footnote 117 There is now hardly an aspect of international criminal law in which it is possible to argue without the ICTY's jurisprudence. Beyond that, the tribunal has influenced the structure of international law more generally, for example when it characterized the prohibition of torture as jus cogens and held that ‘[t]he general principle of respect for human dignity is the basic underpinning and indeed the very raison d'être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law.’Footnote 118 This is a far cry from the view that the PCIJ formulated in Lotus.
The ad hoc criminal tribunals fuelled endeavours for a permanent institution that were finally met in 1998 when state representatives passed the Statute of the International Criminal Court (ICC). For many commentators the ICC is the epitome of a new area in international law in which the international community's fundamental values are now better protected.Footnote 119 Antonio Cassese argues that international crimes are grave violations of universal values, a matter for the whole international community, and as such best brought before an international court.Footnote 120 The court's preamble references the ‘conscience of humanity’, addresses jurisdiction over ‘most serious crimes of concern to the international community as a whole’, and expresses the determination to ‘guarantee lasting respect for and the enforcement of international justice’.
Also decisions of the International Tribunal for the Law of the Sea (ITLOS) fit the second understanding. Its prime responsibility rests with inter-state dispute settlement concerning the application of UNCLOS.Footnote 121 From the perspective of the community paradigm, it is noteworthy that UNCLOS constructs the area beyond national jurisdiction and its resources as ‘common heritage of mankind’ whose ‘exploration and exploitation shall be carried out for the benefit of mankind as a whole’.Footnote 122 Most cases in front of ITLOS have so far dealt with the prompt release of vessels and their crew where the tribunal enforces the right of prompt release of vessels against the posting of a bond when vessels have been arrested by coastal states in those states’ exclusive economic zone on the suspicion of illegal economic activity.Footnote 123 ITLOS here controls domestic public authority and can wield power itself by determining what amounts to a reasonable bond, for example.Footnote 124 While the practice of ITLOS testifies to the second basic understanding, prompt-release cases as well as the regulation of economic activity can only be linked to the fundamental values of the international community at a stretch. They are rather part of increased international regulation and governance in a globalized world and thus point towards the third basic understanding.
3.3. International courts as institutions of legal regimes
A number of increasingly important international courts can, third, basically be understood as institutions of specific legal regimes in whose name they then act. This paradigm looks far more than the other two at transformations in the wake of economic globalization. Many international courts and especially younger institutions nowadays reach further than the co-ordination between states or the protection of fundamental values of the international community. They form part of legal regimes that have grown with increasing interdependence and processes of globalization.Footnote 125
While interdependence and interaction are in principle nothing new,Footnote 126 economic globalization since the 1960s, improvements in transportation and information technology, the spread of production chains around the globe, the mobility of capital, and the unsteady but gradual liberalization of market access have all contributed to a constellation in which states and market participants are thirsty for international regulation.Footnote 127 In the third basic understanding, the iconic Lotus judgment and its grasp on international judicial practice is inadequate not because the will of states has maybe been complemented by values of the international community, but because states can simply no longer, if they ever could, be plausibly conceived as ‘co-existing independent communities’.Footnote 128 National communities exist to a large extent in symbiosis and in mutual dependence. Alas, that does not mean that international conflicts are now impossible. But it means that states are not self-contained entities. Increasing interaction between sectors of society across porous state borders has undermined the premises of a state-centred world order and such interaction exceeds the rather narrow focus on fundamental communal values. The globalized world is much more complex and like any complex system it requires institutions that do much more than sporadic dispute settlement, fundamental rights protection, or prosecution of most serious crimes. Institutions of global governance now meet those needs without reproducing domestic structures of government.Footnote 129 It is sometimes for loose regulatory networks, for international bureaucracies, or for international judicial institutions to engage in law-making, in stabilizing normative expectations, and in controlling and legitimating public authority. In the absence of an overarching polity international institutions tend to entrench processes of societal differentiation and are part of processes of fragmentation. Legal regimes diverge and develop their own perspectives on the world.Footnote 130
International trade law provides a fine example. The General Agreement on Tariffs and Trade (GATT) of 1947 obliged contracting parties to concentrate trade measures on tariffs and to gradually negotiate tariff reductions in order to facilitate market access and to boost international trade flows. Notably, neither the GATT nor the Agreement establishing the WTO of 1994 mentions the grand themes of peace or human rights protection, which formed the core of the international legal project of the UNC after the Second World War. The focus rather rests on trade liberalization and on economic goals. In this vein, panels established under the GATT to deal with trade disputes largely argued along the functional perspective entrenched in this legal regime. In a series of critical cases in the 1990s they tried to fend off any interference from outside perspectives and severely limited the possibilities of contracting parties to justify trade restrictions, for example in the form of conditions for market access that are connected to public policy goals such as environmental protection.Footnote 131 Only the new Appellate Body established with the WTO redirected the line of argument when it held that the GATT must not be read ‘in clinical isolation from public international law’.Footnote 132 The Appellate Body in principle opened up to competing perspectives,Footnote 133 but biases along the functional lines of the legal regime arguably remain.
Technically, both panels and the Appellate Body issue ‘reports’ which have no binding force unless they are adopted by the plenary Dispute Settlement Body.Footnote 134 These institutions qualify as courts in this contribution's understanding all the same because their reports are adopted quasi-automatically – they are adopted unless they are rejected by consensus – and they show such continuity and discursive density that they can well be termed permanent.Footnote 135 The steady support of the WTO Secretariat, with its legal division, further nourishes the construction of a body of case law and so does the principle of collegiality according to which the members of the Appellate Body who are charged with a case confer with those who are not. In addition, jurisdiction is compulsory.
Institutional design and the spell of precedents in legal discourse backed by judicial practice have led to a rich body of case law. The Appellate Body has explicitly demanded that panels follow its decisions in order to allow for ‘the proper functioning of the WTO dispute settlement system’.Footnote 136 The stabilization and development of normative expectations is thus clearly on the horizon of adjudicators. And so is the function of controlling domestic authority by way of judicial review when adjudicators test domestic legislation and administrative action against a detailed web of international regulation. Richard Stewart summarizes that the
dispute settlement system [takes] on the principal burden of updating WTO trade disciplines and determining the addressing their relation to non-trade norms . . . . These circumstances . . . have also helped push the dispute settlement process from a purely bilateral and reciprocal system of episodic dispute settlement towards a multilateral system with a regulatory character. . . . [T]he dispute settlement system has assumed a regulatory and even an incipient administrative character.Footnote 137
Many strands of the WTO's judicial practice easily bear out this observation.Footnote 138
The International Centre for the Settlement of Investment Disputes (ICSID) provides another important example for regime-specific adjudication. It can well be viewed from the perspective of courts as institutions of specific legal regimes in a globalized world, similar to the field of international trade law. As part of the investment-law regime, ICSID primarily acts as a venue for investors to enforce protection standards against host states. Its creation speaks volumes. It goes back to the political advocacy of then general counsel of the World Bank, Aron Broches, who, faced with failed international negotiations about the applicable material law in the 1960s, advanced the programmatic formula ‘procedure before substance’.Footnote 139 At the time, state representatives found no agreement on many substantive issues such as what amounts to expropriation or to fair and equitable treatment, or how compensation should be determined. In view of persistent disagreement, the process of adjudication was supposed to develop the law – procedure before substance. And so it did. Investment tribunals shaped the law deeply imbued with the functional logic pervading the investment protection regime.Footnote 140 Judicial practice in this field continues to be justified either with the consent of the parties or, where this becomes increasingly less plausible, by the functional goal of contributing to the economic development of the host state.Footnote 141
In many ways investment arbitration is an unlikely case for adjudication to show contributions to a larger whole other than sporadic dispute settlement. Not only are tribunals composed ad hoc, but they also operate on the basis of roughly 3000 bilateral investment treaties, which do not always speak the same language. But judicial practice has all the same developed a system of investment law.Footnote 142 Tribunals have engaged in law-making and they review domestic action against international standards which they themselves helped to shape. While practice is not uniform, an ethos grows along the lines expressed by one tribunal when it found that ‘it has a duty to seek to contribute to the harmonious development of investment law and thereby to meet the legitimate expectations of the community of States and investors towards certainty of the rule of law’.Footnote 143 More tribunals see the need to relate their practice to earlier decisions and conflicting decisions are generally perceived as a legitimatory problem. While the system lacks an appellate mechanism and only knows an annulment procedure which is very limited in its scope, the expansion of what annulment committees actually do, almost engaging in outright appellate review, can well be understood as a reaction to the legitimatory deficits of inconsistent and ill-reasoned arbitral awards.Footnote 144
The WTO dispute settlement institutions, as well as ICSID tribunals, challenge general doctrine and, given the economic, social, and political importance of many of their decisions, it seems increasingly hard to sustain that the focus of general doctrine rests on decisions of the ICJ. Such doctrine risks missing its very purpose.
4. Outlook: how functional analysis sharpens normative questions
The sequence of three basic understandings should not be seen as a progressive chronology or projection, not least because each understanding has serious difficulties when it comes to giving a satisfactory account of the legitimatory basis of contemporary international adjudication. Briefly pointing out the most salient difficulties leads us towards suggesting a new paradigm for the study of international courts.
The first paradigm sees courts as instruments in the hands of parties and justifies their practice on the basis of state consent. But the solidity and reach of this consensual basis may well be questioned in light of a multifunctional analysis of judicial practice which draws attention to the ways in which adjudication reaches beyond concrete disputes, above all by its law-making dimension. The second understanding is amenable to a multifunctional view and complements state consent as a legitimatory basis with the interests and values of the international community. But the reference to fundamental communal interests is also too narrow and too vague to fully justify the current practice of adjudication in a globalized world. The third paradigm sees international courts as institutions of specific legal regimes and tends to employ narratives of legitimacy that implore specific regime interests. The difficulty here is that courts may be prone to bias and that their legitimatory basis remains unsettled because the focus on pursuing specific interests can hardly inform inevitable normative choices and balances between competing interests.
Finally, then, none of these understandings sees international courts as actors. They rather reduce judicial practice to giving effect to the will of the parties, the values of the community, or the interest of legal regimes. International courts are understood as instruments, organs, and agents. Against the background of the difficulties of each understanding, we suggest developing a new paradigm for the study of international courts that sees them as multifunctional actors exercising public authority. Characterizing their activity as an exercise of public authority sets the parameters for their legitimation generally.Footnote 145 Employing a functional analysis and drawing attention to distinct functions helps to further refine the phenomenon as well as normative questions. As we mentioned earlier, not all courts serve all functions equally at all times. The ICJ, given its weak jurisdictional basis, its broad focus, and its global constituency, certainly differs from the ECtHR or the WTO Appellate Body, for example. In fact, the multifunctional approach helps to better understand the differences between international judicial institutions and thus hopes to contribute to a nuanced discussion relating to international courts’ exercise of public authority and its legitimation.
