Prof. Mark E. WojcikThe John Marshall Law School—Chicago

Università degli Studi di Bari “Aldo Moro”Facoltà di Giurisprudenza

Spring Semester 2019

intlawprof@gmail.com

An Introduction to International Courts and Tribunals

International Courts and TribunalsAdvantages

• Provide an alternative to going to war• Most states generally

respect decisions of international courts and tribunals most of the time• Preliminary measures may

be available• Decisions can provide

guidance for other cases and for other countries

Limitations• No mandatory enforcement

mechanisms to enforce judgments• Courts may not necessarily be

representative (e.g., low number of women judges)• Preliminary measures may be

denied• Cases are not “binding”

precedent except as to the parties in that particular dispute

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International Courts and Tribunals• An international dispute may be brought to one of many

international tribunals, some with overlapping jurisdiction (e.g., ICJ and ITLOS)• Decisions bind the parties before the court or tribunal only as

to that case. They are not necessarily binding on other parties or in other situations.• Nonetheless, advocates and scholars should be able to find

and cite decisions of international tribunals and determine whether rules they establish are still valid. (For example, a subsequent treaty may change a rule established in an international court decision.)• International judicial decisions can support a legal framework

for advocacy and scholarship.

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Most Famous International CourtsPermanent Court of International Justice (PCIJ) [League of Nations]International Court of Justice (ICJ) [United Nations]

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International Court of Justice (ICJ)

176 cases have been brought to the ICJ since 22 May 1947

Contentious CasesAdvisory Jurisdiction

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U.N. Charter art. 93(1)

•All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.

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U.N. Charter art. 92

• The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

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Article 38 of the Statute of the International Court of Justice (ICJ)

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:(a) international conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;(d) . . . judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

• 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

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U.N. Charter art. 941. Each Member of the United Nations undertakes to

comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

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Question

How can an ICJ

judgment be enforced?

• Article 94(2): If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council, which may, If it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

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Question

How can an ICJ judgment against

one of the P-5 Members of the Security Council

be enforced?

• Article 94(2): If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council, which may . . . make recommendations or decide upon measures to be taken to give effect to the judgment.

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Article 59 of the Statute of the International Court of Justice (ICJ)

“The decision of the Court has no binding force except between the parties and in respect of that particular case.”

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U.N. Charter art. 96Advisory Jurisdiction

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

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Which Agencies Have Asked the ICJ for an Advisory Opinion?

UN Organs• General Assembly• Security Council• Economic and Social

Council

Authorized Agencies

• UNESCO• World Health Organization

(WHO)• International Fund for

Agricultural Development (IFAD) • International Maritime

Organization (IMO)

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The U.N. General Assembly has Requested ICJ Advisory Opinions in 16 Cases (1-8)

• Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)• Reparation for Injuries Suffered in

the Service of the United Nations • Interpretation of Peace Treaties

with Bulgaria, Hungary and Romania • Competence of the General

Assembly for the Admission of a State to the United Nations

• International Status of South West Africa • Reservations to the Convention on

the Prevention and Punishment of the Crime of Genocide • Effect of Awards of Compensation

Made by the U.N. Administrative Tribunal • Voting Procedure on Questions

relating to Reports and Petitions concerning the Territory of South West Africa

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The U.N. General Assembly has Requested ICJ Advisory Opinions in 16 Cases (9-1)

• Admissibility of Hearings of Petitioners by the Committee on South West Africa • Certain Expenses of the United

Nations (Article 17, paragraph 2, of the Charter) • Western Sahara • Applicability of the Obligation to

Arbitrate under Section 21 of the U.N. Headquarters Agreement• Legality of the Threat or Use of

Nuclear Weapons • Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory • Accordance with International Law

of the Unilateral Declaration of Independence in respect of Kosovo

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The U.N. General Assembly has Requested ICJ Advisory Opinions in 16 Cases (16)

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

•Decided 25 February 201917

The U.N. Security Council has requested only one Advisory Opinion from the ICJ

• Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)

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Where to Find the Full List of Agencies with Links to ICJ Advisory Opinions

https://www.icj-cij.org/en/organs-agencies-authorized

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Other International Courts

• International Tribunal for the Law of the Sea (ITLOS)• Permanent Court of Arbitration• International Centre for Settlement of Investment Disputes (ICSID)

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Regional Courts• Africa• African Court on Human and Peoples’ Rights (ACHPR)• East African Court of Justice (EACJ)

• Americas• Inter-American Court of Human Rights (IACHR)• Caribbean Court of Justice (CCJ)• Eastern Caribbean Supreme Court (ECSC)

• Europe• European Court of Justice (ECJ)• European Court of Human Rights (ECHR)

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Other Tribunals: U.N. Treaty-Based Bodies [not a complete list]• The Human Rights Committee monitors the implementation of the

International Covenant on Civil and Political Rights (ICCPR) and its optional protocols.• The Committee on the Elimination of Racial Discrimination (CERD) monitors

the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination.• The Committee on the Elimination of Discrimination against Women (CEDAW)

monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women and its optional protocol. • The Committee against Torture (CAT) monitors the implementation of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Subcommittee on Prevention of Torture (SPT) monitors the optional protocol.

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International Criminal CourtsPast

• Nuremberg Tribunal• Tokyo Tribunal• International Criminal

Tribunal for the Former Yugoslavia (ICTY)• International Criminal

Tribunal for Rwanda (ICTR)

Present• International Criminal Court (ICC)• United Nations International

Residual Mechanism for Criminal Tribunals (IRMCT)• Extraordinary Chambers of the

Courts of Cambodia (ECCC)• Special Tribunal for Lebanon (STL)• The Kosovo Specialist Chambers and

Specialist Prosecutor's Office

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International Criminal Courts

Advantages

Prosecutes those responsible for massive crimes

Trials can establish an historical record of what really happened

Prosecutions have international legitimacy

Limitations or Criticisms

Only a small number of defendants are convicted

Great expense and long delays

An international court may be seen as only "victor's justice"

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International Criminal Tribunal for the

former Yugoslavia (1993-2017)

The ICTY was a United Nations

tribunal for war crimes committed

during the conflicts in the Balkans in

the 1990s.

The ICTY changed the landscape of

international humanitarian law,

provided a voice to victims, and

proved that those suspected of

having the greatest responsibility for

atrocities committed during armed

conflicts could be called to account.

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International Criminal Tribunal for Rwanda (1993-2017)

The ICTR was the first tribunal to deliver verdicts against persons responsible for committing genocide.

The ICTR was the first tribunal to recognize rape as a means of perpetrating genocide.

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International Criminal Tribunal for Rwanda (1993-2017)

93 Defendants• 62 Sentenced• 10 referred to national courts for

trial• 3 fugitives referred to IRMCT• 2 died before judgment• 2 indictments withdrawn before

trial27

Discussion Question

What issues can arise when an international criminal court shuts down?

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Issues that may arise when an international criminal court shuts down include:

Who keeps the court documents and records?

What happens to witnesses who have been given protection in exchange for their testimony? Are they still going to be protected?

What happens If further judicial proceedings become necessary (such as a defendant asking for an earlier releast?

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IRMCT

U.N. International Residual Mechanism

for Criminal Tribunals (IRMCT)

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Other Courts: ITLOS (International Tribunal for the Law of the Sea)

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ITLOS

The M/V “Norstar” Case (Panama v. Italy)

The public hearing in the case concluded on 15 September 2018. The Tribunal is now deliberating on the case.

Information about the case is at www.itlos.org

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International Center for the Settlement of Investment Disputes (ICSID)

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ICSID• ICSID is an international arbitral tribunal established in

1966 to resolve disputes between international investors. It is funded by and is part of the World Bank Group.• As of February 2019, 154 contracting member states

have agreed to enforce and uphold ICSID arbitral awards. Eight other states have signed but not yet ratified the ICSID Convention.

• Online ICSID database to research cases, treaties, and investment laws

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International Courts and TribunalsAdvantages

• Provide an alternative to going to war• Most states generally

respect decisions of international courts and tribunals most of the time• Preliminary measures may

be available• Decisions can provide

guidance for other cases and for other countries

Limitations• No mandatory enforcement

mechanisms to enforce judgments• Courts may not necessarily be

representative (e.g., low number of women judges)• Preliminary measures may be

denied• Cases are not “binding”

precedent except as to the parties in that particular dispute

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