Hybridity in International Adjudication: How International are International Courts?

Abstract

How international are international courts (ICs)? Among lawyers, the notion of ICs comes with a strong public international law connotation. In this book chapter, we trace examples of hybridity in international adjudication, focusing particularly on the admixing of domestic and international judicial forms, practices, and legal cultures. After surveying a number of past and current ICs, we argue that hybridity is not a phenomenon reserved to domestic courts engaging international dimensions of law, but also a characteristic of many ‘proper’ ICs. More specifically, we focus on a number of dimensions of hybridity in relation to ICs, namely: i) the mixed professional backgrounds of international judges (diplomacy, legal academia, the bench, private practitioners, etc.); ii) the mixed legal knowledge being used by ICs (national and international law, different legal traditions, etc.); iii) the mixed jurisdiction of some ICs, blurring the boundaries between domestic (often constitutional) law and international law; iv) the mix of legal and political features of ICs, most notably the operation of commissions as part of the international court systems; and v) the mixed institutional features of ICs with regard to more clearly defined judicial roles and arbitration.