International Adjudication Research Articles

A Taxonomy of Proportionality in International Courts

If lawyers seek to define a 'universal' or 'global' norm through the trends of international courts rather than through domestic or even regional ones, the arguments of proportionality's champions who claim its 'near' universal appeal as a judicial tool become problematic. In the international adjudication of individual rights, the 'principle of proportionality’ is often clear and explicit, but 'proportionality as a judicial tool' produces inconsistent results. For example, the ECtHR, through cases such as Behrami and Saramati, employs a proportionality that elevates institutional conceptions of rights over individual ones, whereas the ICJ, in adjudicating the human right to self-determination, has debatably done just the opposite in recognizing the 'unilateral' form of that right. Moreover, the ECtHR and the ECJ both tend to avoid proportionality altogether when it is 'hierarchy inhibiting'. In international humanitarian law, the notion of proportionality is infused with outdated assumptions about symmetry of capacity and ends that are justifiable, and in ICL, while the ICC and hybrid tribunals claim to recognize a plurality of retributive or expressive punishment, the principle of proportionality disintegrates this claim through practice (this is evident through sentencing at various ICL tribunals, for example). In international economic law, meanwhile, the WTO's proportionality based the 'General Exceptions' of GATT Art. XX produce inconsistent 'proportions' with respect to 'public morals'; and in international investment law (IIL), arbitral tribunals such as the ICSID asymmetrically apply proportionality to the actions of states and not to investors.

Arbitrators and the Rule of X

My topic tonight is the far-flung array of individuals who serve as international adjudicators, arbitrators, commissioners and judges. I have given a great deal of thought in my research to this group. For me, it is the most difficult group in international courts to predict, to give a logic to. Some academics say they seek reappointment; that is true of some but most certainly not of all and not the primary driver in my experience for most. My focus tonight concerns international arbitrators who are appointed for only one matter; who are reappointed by virtue of their reputation, if not first-hand knowledge. There has been much debate in several dimensions concerning this pool of arbitrators over the past two decades. At the outset, I wish to emphasize that this discussion is only starting and in my view presents a much deeper agenda then currently set out. A segment of a course on arbitration addresses the identity beliefs and conduct of arbitrators, but only the minimum parties may expect from them in terms of law (that is, challenges). That course may also discuss the minimum parties should expect in terms of ethics. Unaddressed to my knowledge is a discussion not of minimums but of what arbitrators professionally should demand of themselves and each other.

International Adjudication from the Visual: Stained Glass Windows, Peace Palace, The Hague

This Chapter critically examines The Evolution of the Peace Ideal (1914), a series of four monumental stained glass windows inside the largest courtroom at the Peace Palace in The Hague that now houses the International Court of Justice. It uses the stained glass windows to reveal structuring beliefs associated with international adjudication at the turn of the twentieth century. Accordingly, this Chapter discusses the ethereal effect of the stained glass and its vivid iconography as a means to portray international adjudication as a romantic ideal essential to the achievement of peace. It explains how a highly structured evolutionary narrative across the four windows marks international adjudication as a technical project that serves to distinguish “civilized” and “uncivilized” nations. Finally, this Chapter details how this narrative and its general historicism positions international adjudication beyond the reach of history, seemingly universal despite underlying changes as to its meaning and practice over the last century. The act of revealing these beliefs raises questions as to their place in the theory and practice of international adjudication today.

Sources of Inherent Powers in International Adjudication

This chapter contributes to the debate about the sources of inherent powers in international adjudication. First, it contemplates the broader issue of whether the use of these powers amounts to exercising, or exceeding, an adjudicative body’s proper function. We argue the distinguishing feature of inherent powers is that they are “necessary” or “essential” judicial powers. There are also potentially basic limitations found in international law that restrict the disputing parties’ ability to take way certain inherent powers from an adjudicative body. Second, this chapter emphasizes the key role that constitutive instruments play in shaping the inherent powers of international courts and tribunals, which should alleviate the concerns about the legitimacy of these powers. Commentators typically favour one of the approaches to the sources of inherent powers in international adjudication, relying either on general principles, on the status or function of international courts, or on implied powers. We contend that these approaches do not conflict. Inherent powers can be derived from multiple sources: they can be express, they can be discretionary, they can be implied from the judicial function, or they can be rule-based with a grounding in general principles. Inherent powers are thus partly overlapping and all four sources can and do co-exist.

International Adjudication and Public Opinion in Territorial Disputes: Evidence from a Survey Experiment Using Amazon Mechanical Turk

AbstractThis article explores the effects of international adjudication on individual-level attitudes in territorial disputes. In particular, we investigate the micro-foundations for the argument that international court rulings provide political cover for governments settling disputes through unpopular territorial concessions. In an online survey conducted for this project, 494 Indian respondents were confronted with a fictitious foreign policy scenario. A randomized experiment embedded in the survey provides four major findings. First, international adjudication makes citizens more willing to support concessions in border disputes. Second, international courts influence the perceived fairness of comprosmise solutions. Third, legal conflict management mediates the emotional fallout of territorial concessions. Finally, we do not find any evidence for the claim that international adjudication reduces individual-level concerns over commitment problems. By focusing on individual-level data, this article provides an important contribution to the literature on international conflict management.

The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication

The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third-states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account, and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps towards globally affected others by (1) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies, and (2) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.

Measuring judicial independence in international law

This article searches for paths, frameworks and modules for the measurement and evaluation of judicial independence in international law. First, it discusses the measurability of the concept. Judicial independence, both as such and especially at the international level, is very difficult to measure, given the ambivalence of some proxies and variables that have been used in empirical research in order to measure it, and given the competing interests and actors in international adjudication: independence does not stand alone as the only value that needs to be protected in international adjudication. Second, the article presents methodologies for the evaluation of international judicial independence. The three competing methodologies are (i) the subjective, which looks at the subjective perception of the judges themselves or the public; (ii) the output-based, which looks at the decisions of the courts and tribunals; and (iii) the institutional, which looks at the personal independence guarantees of the judge, and the organizational safeguards of independence. Finally, this article presents its preferred model for the measurement of international judicial independence. The study takes an institutional-psychological approach that focuses on the judge and the individual institutions.

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. Part One of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs – application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Part Two then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Part Three concludes.

The Ethics and Empirics of Double Hatting

Is it time to end the practice of double hatting in international adjudication? In this ESIL Reflection, we examine the practice of double hatting in the specific context of international investment arbitration. We ask three questions: how widespread is the practice; when is it a problem; and what can be done? In doing so, we introduce and develop new empirical findings but also make links between investment arbitration and broader practices in international adjudication.

Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice

The jurisdiction of international courts and tribunals and the admissibility of inter-State claims under international law are central to international adjudication, operating as a gateway to the litigation on the merits – the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility, with a special focus on international investment arbitration, and introduces the selected case-studies which form the subject-matter of the articles in this Special Issue. The recent Urbaser award is also used as an example of the unexplored potential of novel – and critical – legal argumentation relating to the jurisdiction of investment tribunals.

The Role of the ECHR and Other Human Rights Bodies During the Ukrainian Conflict, Its Eventual Settlement and Aftermath

The present research looks into the inter-state and quasi-inter-state cases examined by the European Court of Human Rights (“the Court”) linking them with the context of Ukrainian conflict in Crimea and its Eastern part. It puts emphasis on the challenges that the Court has met in its previous cases, from the perspective of the States in dispute, and wonders on the outcomes of the Ukrainian inter-State and quasi-inter-State pending litigations. The paper observes briefly the executional perspectives and, finally, proposes some short-term scenarios of how these litigations may evolve. It starts by a general introduction into the contexts and developments of inter-state and quasi-interstate adjudication under the European Convention on Human Rights (“the Convention”), underlining in particular aspects relevant for the pending Ukrainian disputes. Then it outlines the general question of extraterritorial States’ jurisdiction and the Court’s specific interpretation from the Convention Human Rights Law perspective, in comparison to general meaning as given by other international adjudication bodies. All relevant elements from both summaries are supported by the Court’s case-law leading cases. Turning to the Ukrainian conflict situation, the paper surveys landmark Convention cases concerning the so-called “frozen conflicts”, reflecting rather the Court’s reasons between the lines and behind its official rulings; what tactic the Court usually employs dealing with the inter-States disputes and how these cases have been evolved so far under the Convention mechanism, including their execution stage. The paper will list similar zones with “on-going” and/or “frozen conflicts” that already gave raise to systemic problems and massive violations leading to multiple cases being brought before the Court (such as the Transnistrian region of the Republic of Moldova; the Nagorno-Karabakh region of Azerbaijan and its conflicting jurisdiction with Armenia; the Northern Cyprus region and the extensive jurisdiction of Turkey, as well as Abkhazia and South Ossetia, conflictual zones of Georgia). The author assesses how the autonomous interpretation of the jurisdiction under the Court’s case-law has been applied to all these cases and, therefore, what are the effects in terms of the state’s positive or negative obligations under the Convention in these zones. Then, the paper will illustrate types of cases and applications coming from conflictual zones, in particular inter-State cases and individual applications, which may become quasi-inter-States disputes. In the end, the present paper dares to make some assumptions concerning a potential development of the Ukrainian human rights complaints brought before the Court (be that inter-State or quasi-inter-State cases). It will be mainly a hypothetical exercise and speculative scenario, which however will be construed on the above research and overview of the previous cases. It will refer solely to the on-going international disputes over the Crimea region and military conflicts in the Eastern regions of Ukraine, from jurisdictional perspective of both States in dispute. However, no valuable predictions will be possible concerning the merits of the Ukrainian cases and the executional reaction, though some general ideas and examples will be mentioned.

An International Law Perspective on Insular Features (Islands) and Low-tide Elevations in the South China Sea

The numerous insular features (islands/rocks) and low-tide elevations (reefs, shoals, etc.) within the South China Sea have long been the centre of attention and dispute involving Brunei, China (the People’s Republic of China and the Republic of China (Taiwan)), Malaysia, the Philippines, and Vietnam. This contribution focuses on said maritime features from the perspective of the law of the sea. A general overview is provided of the international legal rules that apply to islands, rocks and low-tide elevations with reference to the United Nations Convention on the Law of the Sea, customary international law and international adjudications. The article then examines what the littoral states have said and done respecting the insular features in the South China Sea and offers some reflections in the context of the Philippine-China arbitration.

PEACEFUL MEANS FOR SETTLEMENT OF INTER-STATE DISPUTES: REFLECTIONS, ADVANTAGES AND DISADVANTAGES

Disputes, tensions and conflicts are present in all spheres of human society, either at the national, regional, or international level. Therefore, international law requires peaceful methods for dispute settlement and somehow it becomes an imperative in international relations. From a legal point of view, the dispute settlement in international law creates an obligation for states to settle their disputes in accordance with the international law by using the peaceful means and mechanisms. They can choose between diplomatic, judicial and institutional means. Such means include legally binding and non-binding mechanisms: negotiation, good offices and conciliation (as diplomatic means and non-binding third party facilitation); intervention of an international or regional organization and its bodies or representatives (as an institutional mechanism), and legally-binding mechanisms such as arbitration and international adjudication (as judicial means). Although there is a specific obligation for the states to settle their disputes through peaceful means, they are also free to choose the most suitable peaceful mechanism for their dispute. The distinction between the diplomatic and judicial means is related to the difference between two categories of disputes: legal and political. The legal disputes are more related to judicial means of settlement, within the international law. Political disputes use diplomatic channels and political principles instead of international law in order to settle disputes. The diplomatic means are characterized by the lack of binding effect to any conclusion and taking into account all relevant circumstances. By their nature they are less ambiguous compared to judicial means. Arbitration as judicial mean is optional, more flexible and adapted to the objectives of the states. Its conclusions have binding effect. The International Court of Justice and its proceedings are also binding, more rigid, less flexible and take only legal aspects as relevant. States are not always willing to make conciliation in terms of dispute settlement, mostly due to national interests and sovereignty. When states need to choose among these various means, they have to take into consideration their mutual relations and the nature of their dispute. Nowadays, inter-states disputes are real problems in maintaining stability and promoting peaceful relations between states. Consequently, the aim of this paper is to identify the peaceful means and delicate techniques known in the international law and to distinguish their advantages and disadvantages and how states can apply them in order to reach an acceptable and reasonable solution and reduce the risk of new disputes and conflicts between them in future.

International Adjudication, Rhetoric and Storytelling

Legal professionals involved in dispute settlement might greatly benefit from taking a look at literature and learning more about storytelling and rhetoric. These techniques can provide legal arguments with enhanced persuasive force. Unlike in literature, storytelling in law is almost exclusively used as a way of structuring legal arguments, of making them more convincing in order to persuade whatever audience the speaker may address. Likewise, rhetorical techniques can help procure the audience’s adherence to the speaker’s argumentation. A judgment (like any other piece of legal writing) will always aim at persuading the audience to which it is addressed. For any court or tribunal, it is a matter of authority, credibility and prestige. The more persuasive the judgment is, the more the authority of the judicial organ will be reinforced, and its credibility and prestige enhanced.

Subsidiarity, margin of appreciation and international adjudication within a cooperative conception of human rights

The projected inclusion of the subsidiarity principle and the margin of appreciation doctrine in the preamble to the European Convention on Human Rights (ECHR) is a legal turn that deserves special attention. Is it a welcomed reform which will enhance the Strasbourg Court’s often-questioned legitimacy vis-à-vis member states? Does it represent, as some non-governmental organizations have claimed, a setback for human rights in Europe? This article elaborates on these questions by first entering into the current debate on the nature of human rights. I suggest that a “cooperative” political understanding of these rights, which is based on claims of relational justice, is a suitable ground for a normative theory of international human rights adjudication. I then use this political conception to present a non-statist reading of the subsidiarity principle, which is in accord with an incrementalist approach to human rights requirements and with a rationalized version of the margin of appreciation doctrine. My holistic reading is consistent with the axiological aims of the ECHR system as a regional driver of human rights protection without damaging Strasbourg’s legitimacy.

Non-appearance before the International Court of Justice and the Role and Function of Judges ad hoc

Abstract An endless discussion has taken place regarding the role and function of judges ad hoc in contemporary international adjudication. In this regard, doctrine has been important through its ample contribution to the understanding of the institution of the judge ad hoc and its role and function. In fact, from these contributions it is possible to affirm the relevance of the judge ad hoc in contemporary international adjudication. Nonetheless, all these aspects have been analysed having in mind cases where both parties take part in the proceedings. Consequently, a question arises as to what is the role and function of a judge ad hoc when the appointing state fails to defend its case. This article seeks therefore to analyse the role and function of judges ad hoc in cases of partial non-appearance before the International Court of Justice.

In Nobody's Name: A Checks and Balances Approach to International Judicial Independence

In Whose Name?, Armin von Bogdandy and Ingo Venzke have singled out one of the most pressing challenges in current debates regarding international courts: the source of their legitimacy. Given the current structure and limits of international law, instead of expecting international courts to speak in the name of peoples and citizens, this paper contends that international courts should speak in nobody’s name and shifts the focus to judicial independence as a necessary (but not sufficient) condition for the legitimacy of international adjudication. It is argued that judicial independence cannot be understood in terms of the courts’ insularity and appropriate constraining mechanisms ought to be put in place. At first, we reflect upon the differences between domestic and international courts in framing a notion of judicial independence adequate for the international sphere. Thereafter, we flesh out the notion of judicial interdependence and map the actors that might provide appropriate constraints following a checks and balance approach to the institutional design of international courts.

Shall We Talk? Judicial Communication between the CJEU and WTO Dispute Settlement

In this article, ‘judicial communication’ refers to the reference made by a judiciary, during the process of adjudication, to the decision and/or practice of another judiciary. This contribution looks into the communication between two major international adjudicators, namely the Court of Justice of the European Union and the Dispute Settlement Mechanism of the World Trade Organization. The research shows that the communication approach adopted, and the activities carried out by each adjudicator, significantly differ from each other, and this is mainly caused by the different perception of the referencing adjudicator towards the law applied and the decisions made by their counterpart. While the communication is ongoing, a number of important questions remain unanswered, including the fundamental enquiry in regard to the legal basis and consequences of such inter-jurisdiction communication. It thus becomes the pressing task of the adjudicators involved to elucidate these issues.

Quantitative analysis for maritime delimitation: Reassessing the Bay of Bengal delimitation between Bangladesh and Myanmar

This article examines technical aspects of the maritime boundary dispute between Bangladesh and Myanmar (the ‘Bay of Bengal case’). This dispute was the first maritime delimitation determined by the International Tribunal for the Law of the Sea (ITLOS). The 2012 decision was also the first time that a maritime boundary for the seabed and subsoil of the Exclusive Economic Zone (EEZ) and the extended continental shelf (ECS) was determined by international adjudication. This was also therefore the first time that detailed technical quantification of seabed areas within the EEZ and ECS was needed for achieving an equitable division of these maritime zones in an international forum. Following review of the principles of maritime delimitation on which the ITLOS reached its determination, this article analyzes the legal status and delimitation effect of St. Martin's Island. Concerning the question of whether the legal regimes of the EEZ and continental shelf should be treated differently in a single delimitation line, although the ITLOS determined that the legal regimes should not be distinguished in the present case, a different approach is proposed for future cases. The article identifies how quantitative modelling can be used to achieve an equitable boundary and proposes a model to adjust provisional equidistance lines in accordance with the complex geophysical rules prescribed for the outer limits of the ECS in Article 76 of the United Nations Law of the Sea Convention (LOSC).

Uncertainty and International Adjudication

In deciding whether to rule against a state party, international courts regularly confront a compliance dilemma: declare the state in breach of the international regime but with the risk that it will defy the court’s authority; or defer to the state but at the price of acquiescing to an unjust or undesirable outcome. Specifically, international adjudicators must solve this dilemma in a context of uncertainty, that is, without knowing with exactitude whether or not the state will prefer complying with an adverse ruling over overt defiance. I use a simple strategic model to cast light on this aspect of the compliance dilemma. Building off from the model’s insights, I then discuss the practices, doctrinal tactics and institutional mechanisms apt to reduce uncertainty and minimize state defiance. I highlight, in particular, the advantages of defiance avoidance mechanisms that help create informational feedback loops like test-the-water dicta and double-tier review. I illustrate how these mechanisms have been deployed by two of the world’s most powerful international courts, the European Court of Justice and the European Court of Human Rights. Finally, I consider the limitations of these mechanisms along with the possibility for other international dispute settlement bodies to replicate them.