International Courts

by

Cesare P. R. Romano

• LAST REVIEWED: 12 April 2019
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0046

Introduction

The multiplication of international courts is one of the most remarkable changes in international law and relations of the post–Cold War era. Admittedly, international courts are not a recent phenomenon. The first international courts date back to the early years of the 20th century. However, since the early 1990s the number of international judicial bodies has multiplied, the scope of their jurisdiction has expanded, and the number of the cases handled and judgments rendered has grown from a few a year to a steady stream that often has considerable impact on international relations and the lives of individuals worldwide. Depending on how international courts are defined, one can count more than two dozen of such bodies currently active, at very different degrees, both at the global and the regional level. If one were to add also those that are inactive or barely active, have been terminated, or never started operating, the tally can easily reach more than three dozen. This phenomenon has been tracked and analyzed by a vast and rapidly growing literature, fed by two main wells of scholarship. Indeed, international courts have been intensively studied by legal scholars––specifically of international law––first, and then by political scientists––in particular, those specializing in international relations. By and large each of the two learned groups has approached the same object of study from different perspectives, often at different levels of resolution, focusing on different aspects and ultimately using different interpretative tools. Yet both have yielded theoretical and functional insight that must be taken into account if a proper understanding of the phenomenon is to be achieved. It should be noted that in the literature, international courts are also called international tribunals. Albeit the terms courts and tribunals do not designate exactly the same kind of institutions, they are often used interchangeably, so much so that the generic expression “international courts and tribunals” (ICTs) is often preferred. Other, more technical and usually employed, designations are “international judicial body” and “international adjudicative body,” although the latter expression usually includes both international courts and tribunals, which are permanent institutions, and arbitral tribunals, which are ad hoc and temporary (see Definitions).

General Overviews

The history of international courts can be divided into two main phases, with the end of the Cold War, in 1990, being year zero. Before 1990, international courts were relatively few, issuing decisions sporadically. Crucially, their main, if not sole, function was understood to be the settlement of disputes, mostly, if not solely, between sovereign states. They were put on a continuum with diplomatic means of international settlement, such as negotiation, mediation, conciliation, and the like. Thus, textbooks of this early era often discuss within a general chapter entitled “International Dispute Settlement” both diplomatic means and international courts and tribunals. One of the most important textbooks of this early era, conceptualizing international courts as such, is Merrills 2011. But other examples of the same approach are Collier and Lowe 1999, or Bowett’s Law of International Institutions (Sands and Klein 2009). During this early era, the International Court of Justice (ICJ), the principal judicial organ of the United Nations (see also International Court of Justice), was typically regarded as the paradigm of international courts. Most literature on international courts was focused on the ICJ, and most international courts were assessed on how similar or dissimilar they were to the ICJ. However, with the end of the Cold War, the number of international courts has greatly expanded. This new era is marked by an increased legalization of world politics, with legalization defined as “a specific set of dimensions along which institutions vary” which are “the degree to which rules are obligatory, the precision of those rules, and the delegation of some functions of interpretation, monitoring, and implementation to a third party” (Abbot, et al. 2000, p. 387). International courts are an example of high degree of delegation by states to ensure compliance with obligatory and increasingly precise rules, a phenomenon that could be dubbed the “judicialization of world politics.” Shapiro and Sweet 2002 provides a bird’s-eye view of the phenomenon of the judicialization of politics, both national and international. Moreover, international courts have started exercising functions other than international dispute settlement. Most of the time, most international courts act rather as enforcers of international law and as reviewers of the legality of acts of international organizations and their decision-making organs. The “dispute settler” brand cannot capture international criminal courts, or the Court of Justice of the European Union. Also, while erstwhile international courts had jurisdiction only when and to the extent states had accepted it (i.e., consensual jurisdiction), and litigation between states comprised most of their docket, contemporary international courts more often than not enjoy compulsory jurisdiction once a state becomes party to the statute of the given court or member of the organization of which the court is an organ, and often are accessible and used by nonstate actors (Romano 2007). This richness and diversity between courts has, so far, frustrated all attempts at producing a comprehensive text embracing all international courts, old and new, in an analytical fashion. So far, most literature is specialized, confined to a court or a set of similar courts, or largely descriptive. Two of the most comprehensive overviews of most international courts are Mackenzie, et al. 2010 and Oellers-Frahm and Zimmermann 2001.

• Abbot, Kenneth, Robert Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. “The Concept of Legalization.” In Special Issue: Legalization and World Politics. Edited by Judith O. Goldstein, Miles Kahler, Robert Keohane, and Anne-Marie Slaughter. International Organization 54.3 (2000): 401–419.

  DOI: 10.1162/002081800551271

  NNNThis is the introductory piece to a special issue of the journal International Organization, dedicated to the issue of legalization and judicialization of world politics. The special issue contains several articles, many of which should be read by anyone interested in grasping the various dimensions of the phenomenon.

• Collier, John, and Vaughan Lowe. The Settlement of Disputes in International Law: Institutions and Procedures. Oxford: Oxford University Press, 1999.

  NNNA short and clear introduction to the basics of international adjudication. Albeit written in the prehistory of international adjudication, much of it still remains useful.

• Mackenzie, Ruth, Cesare Romano, Philippe Sands, and Yuval Shany, eds. The Manual on International Courts and Tribunals. 2d ed. Oxford: Oxford University Press, 2010.

  NNNContains an overview of the law and procedure of most international courts and tribunals, bibliographies, references, and short assessment of each body. However, on the one hand it does not treat all international courts. For instance, courts of regional economic integration agreements in Africa are absent. On the other hand, it contains chapters on UN treaty-based human rights procedures which are not, technically speaking, international courts.

• Merrills, John Graham. International Dispute Settlement. 5th ed. New York: Cambridge University Press, 2011.

  NNNThis is the most recent edition available. The first edition came out in 1991. Although the book has been revised and expanded to reflect the growth of international courts and tribunals, even in the latest edition international courts are still mainly construed as dispute settlers and lumped together with diplomatic means of settlement.

• Oellers-Frahm, Karin, and Andreas Zimmermann, eds. Dispute Settlement in Public International Law: Texts and Materials. 2 vols. 2d ed. Berlin: Springer, 2001.

  NNNAs opposed to Mackenzie, et al. 2010, this two-volume opus has a larger scope as it includes all international dispute settlement bodies. However, it contains little in terms of analysis and discussion of international courts, and it is mostly made of the text of all statutes, rules of procedures, and other laws regulating the functioning of international courts and tribunals.

• Romano, Cesare. “The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent.” NYU Journal of International Law and Politics 39.4 (2007): 791–872.

  NNNThe shift from the consensual to the compulsory paradigm has taken place even in those courts, like the ICJ or the Inter-American Court of Human Rights, whose statutes still provide only for consensual jurisdiction.

• Sands, Philippe, and Pierre Klein, eds. Bowett’s Law of International Institutions. 6th ed. London: Sweet & Maxwell, 2009.

  NNNOnly one chapter of this book is directly relevant (chapter 13 in the 6th edition), but the chapter is more than one hundred pages long and contains an excellent overview of the field, body by body (including several nonjudicial ones), with a short bibliography at the beginning of each section.

• Shapiro, Martin, and Alec Stone Sweet. On Law, Politics and Judicialization. Oxford: Oxford University Press, 2002.

  DOI: 10.1093/0199256489.001.0001

  NNNProvides a bird’s-eye view of the phenomenon of the judicialization of politics, both national and international. Examples of the phenomenon include the United States, the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO), France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.