The Rough and Tumble of International Courts and Tribunals

Abstract

The PCA, a college of arbitrators, originated as an alternative to wars and arms race in Europe at the high noon of colonialism. Subsequently, in 1922, the PCIJ was established to address the ad hoc-ism of pre-World War I hybrid tribunals. Both permanent courts and ad hoc tribunals however failed to acknowledge colonialism as international law’s Achilles heel. The interwar bourgeoisie funded the ghostwriting of apathetic legal methods and capitalist norms in transnational tongues for the protection of alien investors. Post-1945, the continuity of the structure of colonial legal arguments stood in the way of interrogating its essentialist ontology and capitalist teleology. As such, initially, the ICJ stood indifferent to the colonial question. During the ensuing Cold War, the erstwhile colonial powers refused to accept the ICJ’s jurisdiction with the United States doubting the integrity of individual judges. In disputes arising due to the breach of colonial concession contracts, investor-state tribunals billed the costs of producing legal norms to the new sovereigns. Prescriptive writings in favour of judicial lawmaking and the proposed interweaving of investor protection with human rights continue to nourish international law’s Eurocentrism. A hyper-normative theory of lawmaking by international courts and tribunals remains decidedly indifferent to both rational choice approach and third world scholarship. This paper puts ontology and teleology of international judicial lawmaking to test.