THE LAW AND POLICY OF INTERNATIONAL COURTS

AND TRIBUNALS

PROFESSOR CHRISTINE CHINKIN, LSE

PROFESSOR PHILIPPE SANDS

LLM 2001/2

PART 2: TERMS 2 AND 3

This Part of the course will consider the role and functioning of international courts and tribunals.Ý It will first address various institutional aspects:Ý the appointment and role of adjudicators; the role of the registry or secretarial; participants (and non-participants) in proceedings and their representation; applicable law; issues of access, including jurisdiction (contentious and advisory), standing and admissibility; financing of international courts and tribunals and of proceedings before them. Part 2 also addresses various procedural aspects: third party participation, including intervention; preparation and filing of written pleadings and the role of oral argument; provisional measures; evidentiary rules and principles; the powers of the various courts and tribunals; remedies; appeal and review.

In addressing these topics we will not strive to be comprehensive. Rather, we intend to address selected issues within broader topics to identify the political, legal, cultural and other factors that drive decision-making and the life of the various international courts and tribunals. In addressing the various topics you should try to keep in mind some of the broader issues which arise:

… Is there a ìsystemî of international courts and tribunals?

… Should there be a ìsystemî of international courts and tribunals which differs from that which currently pertains (if indeed it does)?

… Are there common principles and themes which cut across the various institutional and procedural aspects of these bodies?

… What are the implications of the current proliferation and the ìsystemî for the development of the substantive rules of international law?

In considering these issues we will focus on 6 bodies: ICJ, ECHR, ECJ, ICTY, ITLOS, WTO and ICSID. We will look to the practise of other bodies where appropriate.

You should therefore obtain hard copies (from the relevant web sites, via www.pict-pcti.org or directly as set out below) of the relevant Statutes and Rules of these bodies:

ICJ: ÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ UN Charter, Articles 92-96

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Statute of the Court (1945)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Rules of the Court (1978)

Resolution Concerning the Internal Judicial Practise of the Court (1990)

Web site: www.icj-cij.org

ITLOS:ÝÝÝÝÝÝÝÝÝÝÝ UNCLOS (1982)

Statute of the Tribunal (Annex VI to UNCLOS)

Rules of the Tribunal

Guidelines concerning Preparation and Presentation of cases

Resolution on the internal judicial practise of the Tribunal

Web site: www.un.org/Depts/los

WTO AB:ÝÝÝÝ WTO Agreement (1994), Arts. III-IV

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Dispute Settlement Understanding (Annex 2 to WTO Agreement)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Working Procedures for Appellate Review (1997)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Rules of Conduct for the DSU (1996)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Web site: www.wto.org

ICTY:Ý ÝÝÝÝÝÝÝÝÝÝÝ Statute (1993, SC Res 827)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Rules of Procedure and Evidence

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Web site: www.un.org/icty

ECJ:ÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ EC Treaty

Statute of the Court of Justice of the EEC

Rules of Procedure of the Court of Justice of the European Communities

www.europa.eu.int/cj/index.htm

ECHR: ÝÝÝÝÝÝÝÝÝÝÝ EHR Convention (as amended by Protocol 11)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Rules of Court (1998)

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Web site: www.dhcour.coe.fr

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ

ICSID: ÝÝÝÝÝÝÝÝÝÝÝ ICSID Convention

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ Rules of Procedure for Arbitration Proceedings

ÝÝÝÝÝÝÝÝÝÝÝ ÝÝÝÝÝÝÝÝÝÝÝ www.worldbank.org/icsid

You can also use the Manual on International Courts and Tribunals to identify the equivalent rules for other bodies which we may refer to.

Part 2: Role and functioning of international courts and tribunals (Terms 2 and 3)

A. Institutional aspects

1. Overview of the ìsystemî ofÝ international courts and tribunals

15 January 2002

… Speech of President Guillaume to the Sixth Committee of UN General Assembly, October 2000

http://www.icj-cij.org/icjwww/ipresscom/SPEECHES/iSpeechPresident_Guillaume_SixthCommittee_20001027.htm

… New York University Journal of International Law and Politics, Volume 31 Number 4 (1999), Symposium issue on ìThe Proliferation of International Courts and Tribunals: Piecing Together the Puzzleî, especially the articles by Kingsbury (pages 679-696), Charney (pp. 697-708), Romano (709-52) and Abi-Saab (919-934)

You can access these and the other articles in full on the NYU JILP website at: http://www.nyu.edu/pubs/jilp/

Click on Issues, then go to Volume 31.

… J. Charney, Is International Law Threatened by Multiple International Tribunals?î, 271 Hague Recueil des Cours 101 (1998)

2. The organisation of the court/tribunal, including appointment and role of judges (including ad hoc judges, and organisation of the Court into Chambers)

Ý22^nd January 2002

Familiarize yourself with the relevant provisions of :

… ICJ (see Manual, paras. 1.5-1.7)

… ITLOS: (see Manual, paras. 3.4-3.5)

… WTO AB (see Manual, paras. 5.5-5.8)

… ICTY (see Manual, paras. 23.6-23.9)

… ECJ (see Manual, paras. 8.5-8.9)

… ECHR (see Manual, paras. 18.5-18.8)

… ICSID (see Manual, paras. 1.5-1.7)

Ý

… E. Lauterpacht, ìThe International Lawyer as Judgeî, in C. Wickremasinghe, The International Lawyer as Practitioner (BIICL, 2000), 125-144

Issues for discussions:

(1) Process of appointment: What are the different ways in which international judges are ìappointedî? What are the policy and practical differences between the appointment of judges by a State (e.g. ECJ) and the election by an organ of an international organisation where a choice exists (e.g. ECHR)?

(2) Term of office: What are the implications of allowing a judge to stand for re-election (see e.g. ICJ), as opposed to permitting only a single non-renewable term (see e.g. ICC Statute, Art. 36(1), (6) and (9))?

(3) Nationality of judges: Compare and contrast the national composition of the members of the ICJ and ITLOS and the WTO Appellate Body ñ what are the implications, if any, for (a) the willingness of different states to have recourse to these bodies, and (b) the substantive outcome (on the merits) of a case?

(4) Gender of judges: According to a recent study 13 out of 208 judges are women. Is this an issue?

(5) Ad hoc judges: What is their proper function?

3. The ìindependenceî and ìimpartialityî of the international judiciary: the case of Prosecutor v Furundzija (ICTY Appellate Chamber, July 2000)

29 January 2002

… Edith Brown Weiss, ìJudicial Independence and Impartiality: A Preliminary Inquiryî, in Lori Damrosch, The ICJ at a Crossraoids (1987), 123-55 and 479-96

… Prosecutor v. Anto Furundzija, ICTY, Appellate Chamber, Judgment of 21 July 2000, at paras.Ý 164-215

(http://www.un.org/icty/furundzija/appeal/judgment/index.html)

ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ Issues for discussion

(1) What is intended by the distinction between ìindependenceî and ìimpartialityî? What other criteria do the various international courts and tribunals require of their judges? What criteria should be required?

(2) In what circumstances should an international judge recuse him/her-self from a case?Ý

(3) Does the Furundzija decision indicate an emerging ìcommon lawî of international courts, in the sense that the same minimum standards for ìimpartialityî might be said to apply in respect of all international courts and tribunals?

4. The representation of the parties

Ý5^th February 2002

… A. Pellet, ìThe role of the international lawyer in international litigationî, in C. Wickremasinghe, The International Lawyer as Practitioner (BIICL, 2000), 147-162

… D. Bowett, ìThe Conduct of International Litigationî, in D. Bowett and others, International Court of Justice: Process, Practise and Procedure (BIICL, 1997), 1-20.

… WTO Appellate Body, European Communities Regime for the Importation, Sale and Distribution of Bananas, 2 August 1997, WT/DS27/AB/R, 9 September 1997, at paras. 11 and 12

… ICJ (Manual, para. 1.35)

… ITLOS: (Manual, para. 3.30)

… WTO AB: (Manual, para. 5.25)

… ICTY: (Manual, para. 23.28)

… ECJ: (Manual, para. 8.34)

… ECHR: (Manual, para. 18.27)

… ICSID: (Manual, para. 6.26)

Issues for discussion:

(1) Some international courts have rules restricting who may appear as counsel before them (ECJ, ECHR), others allow anyone to appear (ICJ), and yet others have previously allowed only government employees to appear (WTO). On what policy grounds can these differences be justified?

(2) What is your reaction to the article by Alain Pellet, positing the thesis that ìacting as Counsel before the World Court is a profession Ö and one that is not regulated by any legal rulesî (p. 148/9)?

(3) What are the implications of the decision by the WTO Appellate Body in the EU Bananas Case to open up access to its procedures to any counsel the Member State wishes to use?

(4) The 1993 Resolution establishing the World Bank Inspection Panel provides at para. 12 that

ìThe Panel shall receive requests for inspection presented to it by an affected party in the territory of the borrower which is not a single individual (i.e., a community of persons such as an organization, association, society or other grouping of individuals), or by the local representative of such party or by another representative in the exceptional cases where the party submitting the request contends that appropriate representation is not locally available and the Executive Directors so agree at the time they consider the request for inspection.î

What is the reason for restricting the role of ìanother representativeî (e.g. Washington DC law firms or NGOís)?

5. Applicable law (procedural and substantive)

12^th February 2002

… ICJ (Manual, para. 1.4)

… ITLOS (Manual, para. 3.3)

… WTO AB (Manual, para. 5.4)

… ICTY ((Manual, para. 23.4)

… ECJ ((Manual, para. 8.4)

… ECHR: (Manual, para. 18.4)

… ICSID: (Manual, para. 6.4)

… P. Sands, ìTreaty, Custom and the Cross-fertilization of International Lawî, 1 Yale Hum. Rts. Dev. L.J. 3 (1998) (http://diana.law.yale.edu/yhrdlj/vol01iss01/sands_philippe_toc.htm)

… WTO Report of the Appellate Body on United States Standards for Reformulated and Conventional Gasoline, 35 I.L.M. 603, at page 621 (1996) (also available at www.wto.org)

… Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ Reps (especially Article 2(1) of 1993 Agreement and paras. 112 and 140 of Judgment (See also Separate Opinion of Judge Weeramantry) (http://www.icj-cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm)

On reservations:

… Human Rights Committee, General Comment 24(52) on issues relating to reservations etc, UN Doc. CCPR/C/21/Rev.q/Add.6 (1994) (Distributed)

… Observations by the United Kingdom on General comment Number 24 (Distributed)

… Observations by the United States on General Comment Number 24 (Distributed)

… R. Higgins, ìIntroductionî, in C. Chinkin and others, Human Rights as general Norms and a Stateís Right to Opt Out (1997, BIICL), xv-xxviii (Distributed)

Issues for discussion

(1) What are the practical consequences of different ìapplicable lawî provisions? Should we assume that international courts are inherently required to apply rules of generalÝ international law, or is it better to assume that in the absence of any such direction by the founders of the institution it should apply only those rules to which it is directed?

(2) What is the relationship between the subject of ìapplicable lawî provisions and discussion as to whether the various international courts amount to a ìsystemî?Ý

(3) What are the implications of the decision by the WTO Appellate Body that the WTO rules are not to be interpreted in ìclinical isolationî from the rules of public international law? Does the approach of the WTO AB differ in nay way from that of the ICJ, as reflected in its approach in the Gabcikovo/Nagymaros case?

(4) On reservations: what does the approach of the HRC in General Comment No. 24 indicate about the ìapplicable lawî applied by that body? Why do the UK and US react as they do? What are the implications, if any, for the interpretation by another international court or tribunal of the ICCPR?

6. Jurisdiction and admissibility I

19^th February 2002

… Admissibility: Collier & Lowe, 155-62

… The indispensable third party:

(1) Monetary Gold case (Italy v France, UK, US), ICJ Reps 1954, 19

(http://www.icj-cij.org/icjwww/idecisions/isummaries/igoldsummary540615.htm)

(2) Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reps 1992, 240

(http://www.icj-cij.org/icjwww/Icases/inaus/inaus_ijudgments/inaus_ijudgment_19920626.pdf)

See also Dissenting Opinion of Sir Robert Jennings

(http://www.icj-cij.org/icjwww/Icases/inaus/inaus_ijudgments/inaus_ijudgment_19920626_DissentingOpinionJennings.pdf)

(3) East Timor case (Portugal v Australia), ICJ Reps 1995 , 90

(http://www.icj-cij.org/icjwww/icases/ipa/ipaframe.htm)

Issues for discussion:

(1) What is the distinction between an objection to admissibility and an objection to jurisdiction?

(2) On what grounds, if any, can the ICJís judgements in Monetary Gold, Nauru and East Timor be justified?

7. Role of registry/secretariat; process of deliberation of international judges

Ý26^th February 2002

Eduardo Valencia Ospina, former registrar of the International Court of Justice, will lead the discussion during this class

… ICJ (Manual, para. 1.14)

… ITLOS (Manual, para. 3.8)

… WTO AB (Manual, para. 25.10)

… ICTY(Manual, para. 23.11)

… ECJ: (Manual, para. 8.11)

… ECHR (Manual, para. 18.10)

… ICSID: (Manual, para. 6.11)

… Sir Robert Jennings, ìThe internal judicial practise of the ICJî, 59 BYIL 31 (1988)

ß Separate Opinion of Judge Szekely, ITLOS, Ireland v United Kingdom (The Mox Case), Order of 3 December 2001 (on www.itlos.org)

ß

Issues for discussion:

[To follow]

8. Jurisdiction and admissibility II

Ý5^th March 2002

Competence and jurisdiction in contentious cases: Collier & Lowe, 132-155

Jurisdiction ratione temporis

… Loizidou v Turkey, EctHR 18 December 1996, Merits and just satisfaction, at paras. 32-47

(www.hudoc.echr.coe.int/hudoc )

… Case Concerning the application of the Genocide Convention (Bosnia and HerzegovinaÝ v FRY (Preliminary Objections), 1996 ICJ Reports

(http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_19960711_frame.htm)

… Tradex Hellas v Albania, ICSID, Decision on Jurisdiction, 24 December 1996

(http://www.worldbank.org/icsid/cases/awards.htm)

Jurisdiction ratione personae

… Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain) 1970 ICJ Reports, 3

(http://www.icj-cij.org/icjwww/idecisions/isummaries/ibtsummary700205.htm)

Jurisdiction ratione materiae

… Southern Blue-fin Tuna Case (Australia and New Zealand v Japan), Award on Jurisdiction and Admissibility, 4 August 2000

Read also the Dissention Opinion of Sir Kenneth Keith

(http://www.worldbank.org/icsid/bluefintuna/main.htm)

… ICJ: (Manual, paras. 1.15-1.21, 1.28)

… ITLOS: (Manual, paras. 3.9-3.14, 3.19-3.20)

… WTO AB: (Manual, paras. 5.11-5.15, 5.20)

… ICTY: (Manual, paras. 23.12-23.16, 23.20)

… ECJ: (Manual, paras. 8.12-8.23, 8.28)

… ECHR: (Manual, paras. 18.11-18.14, 18.19-20)

… ICSID: (Manual, paras. 6.12-6.16, 6.20)

Issues for discussion:

(1) The time element: are the awards in Loizidou and Bosnia, on the one hand,Ý and Tradex, on the other, reconcilable?Ý

(2) What are the implications of the flexible approach taken by the ECHR and ICJ to jurisdiction ratione temporis? Is it the human rights character of these cases which explains the approach?

(3) Might Barcelona Traction be decided differently today?

(4) What are the implications of the SBT cases for future disputes under UNCLOS and for the interrelationship, say, between UNCLOS and WTO jurisdictional rules?

(B) Procedural and Evidentiary Aspects

9. Third party intervention

12^thÝ March 2002

… ICJ (Manual, para. 1.32)

… ITLOS (Manual, para. 3.27)

… WTO AB (Manual, para. 5.23)

… ICTY (Manual, para. 23.26)

… ECJ ((Manual, para. 8.31)

… ECHR: (Manual, para. 18.23)

… ICSID: (Manual, para. 6.24)

… C. Chinkin, ìThird party intervention before the ICJî, 80 AJIL 495 (1986) (also C. Chinkin, Third Parties in International Law (1993), in particular part 2 (International Judicial and Arbitral Procedure and Third Parties))

… S. Schwebel, Book review of Chinkin, at 89 AJIL 835-7 (1995)

ICJ practise:

… Case concerning the Continental Shelf (Libya/Malta) (Application for Permission to Intervene by Italy), 1984 ICJ Reps 3 (summary at http://www.icj-cij.org/icjwww/idecisions/isummaries/ilmsummary840321.htm)

… Case concerning the Land and maritime Boundary between Cameroon and Nigeria, Order of 21 October 1999, http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm

Issues for discussion

(5) In establishing a ìright to interveneî before the various international courts and tribunals, what are the diffe