The International Judicial Function Under Pressure
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Criticisms and Corrective Devices
A. Substantive Jurisdiction and Applicable Law
Most international courts and tribunals are entrusted with specific subject matter jurisdiction, i.e. jurisdiction limited to a single treaty or set of interrelated instruments. Even courts assigned with general jurisdiction encompassing a wide array of subjects are often faced with reservations and other limitations that significantly reduce the set of issues that can be brought to litigation. Thus, jurisdiction is not all encompassing but usually limited to definite matters. Yet disputes rarely fit into neatly assorted compartments. Confronted with instances of so-called mixed disputes, adjudicators have drawn different lines for judicial overreach. While some evaluate where the weight of the dispute lies, others check whether ruling on a submission would first entail addressing an indispensable incidental issue beyond the scope of their jurisdiction. To what extent can adjudicators look beyond the submissions of the parties? Can they rely on applicable law provisions to expand their material jurisdiction? Is it true and, if so, a problem that the advisory function, like the contentious one, often tackles concrete disputes, as opposed to abstract questions?
B. Precedents and Reasoning
Reasoning is the mode of expression of the international judicial function. It is therefore often one of the grounds for challenges to international courts and tribunals. In particular, what is often criticised today is not so much overly elliptical reasoning as excessive reasoning that deals with legal issues that are not indispensable for the settling of disputes. This prolixity is challenged on the grounds that it would make international courts and tribunals legislators of international law, for which they are not qualified. The use of judicial precedents in reasoning is also subject to serious criticism. Although this use is generally perceived as conducive to the coherence and predictability of legal rules, international courts and tribunals that make use of it have been criticised for failing to take into account the relative effect of decisions and for attempting to assume a law-making role, despite institutional limitations in this regard.
C. Interpretation and Judicial Law-Making
International courts and tribunals walk on a tightrope when they are entrusted with the task of interpretation. In practice, the dividing line between interpreting a treaty or an instrument and law-making is far from being clear. Often, the treaty terms are vague and ambiguous. Any attempt by international courts and tribunals to fill the gaps could create a recipe for backlash as the main judicial function of international courts and tribunals is to state the existing law and not make it. This blurred dichotomy of judicial interpretation and judicial law-making also represents the constant interplay of control and authority between States and international courts and tribunals over the interpretation of norms of international law. To what extent do courts and tribunals enjoy the power to interpret? Is it a delegated form of interpretative authority? Although constituent instruments of courts and tribunals may contain a limitation on such authority, the terms of such instruments itself are unclear and have therefore obfuscated the contours of the judicial function.
D. Judicial Review and Appellate Function
To what extent can adjudicators review the validity of acts taken by organs of the United Nations, specialized agencies and other international organizations? Aside from judicial review strictly speaking, can international courts and tribunals disregard findings made by other international organs? In the context of appeals before higher international courts, to what extent can adjudicators review factual findings made by municipal courts and is domestic law to be qualified as a matter of law or a factual one? In recent times, these questions have raised significant challenges for courts and tribunals that are part of an international institution such as the ICJ or the WTO, as the division of authority between different organs is not clear cut. At the same time, international courts and tribunals are increasingly assigned the task of exercising appellate function over acts of international organs. Due to an unclear conception of appellate function in the international legal system, States have an incentive to not only appeal acts that are not in their interest but also re-litigate the whole dispute during the appeal stage.