Hybrid Domestic-International Tribunals - Essay Example

?Relationship between the International Court of Justice and other International and regional courts and tribunals Introduction In the management of most cases of international concern, the main adjudicative body is the International Court of Justice. This body is authorized by the United Nations as the primary body for the resolution of issues involving human rights violations and other issues involving two or more states. In recent years, other international regional courts and tribunals have emerged and they have assisted in the implementation of international laws and policies. This paper shall discuss the relationship between the International Court of Justice and other international and regional courts and tribunals. It shall also discuss any conflicts between these courts, and the challenges and issues which are seen with the emergence of these multiple courts. An evaluation of what this relationship should be will also be discussed. Body Hybrid domestic-international tribunals International courts also operate within the context of hybrid domestic-international tribunals which provide another approach to transitional justice, where societies consider accountability for mass atrocities1. These hybrid courts blend both international and domestic laws and the international courts recognize their existence in so far as they do not conflict with the principles of international law. These courts include foreign judges sitting with domestic judges and hearing cases which are argued by local lawyers within the countries where the cases are being tried2. The judges apply the domestic laws which have been fashioned to accommodate international legal provisions. They operate in an ad hoc manner based on on-the-ground innovations and processes3. These courts have been seen as tools in the management of mass atrocity, especially seen in instances where there are no political tools for the international tribunals or courts to use. This was seen in the case of East Timor or Sierra Leone or in the case of Kosovo where the international courts cannot handle the large bulk of cases for adjudication4. However, even with the increased materials on transitional justice, the hybrid courts have not received as much attention as the international courts. This lack of general acceptance is mostly based on the fact that hybrid courts have faced much resistance on both sides – from both the domestic and the international scene. Moreover, hybrid courts who do favour the more international brand of adjudication see these courts as alternatives to the international tribunals. Many national governments, including the US, and other western nations, reject the view that hybrid courts represent trends for the future5. These governments seem to believe that the hybrid courts may eventually end up as replacements for international justice, and that these hybrid courts may undermine the better application of international justice. States who resist international justice, on the other hand view hybrid tribunals as “carrying too many of the trappings of international courts”6. This general resistance towards hybrid courts is considered unfortunate because they present better adjudicatory benefits based on international and local juridical concerns. Hybrid courts adjudicating in the Kosovo case The NATO launched an attack in 1999 which sought to end the ethnic cleansing goals of the Serb forces against the Albanian population in Kosovo. This prompted a declaration from the UN Security Council forming the UN Mission in Kosovo, where the mission was assigned to establish peace and security in the region and to carry out administrative functions, as well as to coordinate humanitarian and disaster relief efforts and to promote human rights. The responsibilities of the mission specifically included the establishment of law and order, as well as the apprehension and prosecution of those who committed war atrocities7. This goal was however not adequately met by the mission because many of the court infrastructures and equipment in Kosovo were destroyed by the war8. There were also few lawyers and judges and those who were available did not have as much experience. Those who were apprehended and scheduled to undergo trial were filling up the already overcrowded prison cells and the possibility of trial was very low9. In other words, the adjudication for the conflict was very much low. The ICTY was also not ready to handle the case and it was actually only prepared to resolve the worst atrocities during the conflict10. The prolonged implementation of justice among those arrested was triggering complaints of human rights violations; moreover, ethnically-motivated violent acts in the region persisted. In order to address this judicial crisis, a special court, the Kosovo War and Ethnic Crimes Court was formulated. It had a concurrent jurisdiction with the ICTY, but its focus was on the less high-profile cases which the ICTY could not adequately try11. There still however was some delay in the court processes and the UN authorities helped ease the process by allowing foreign lawyers to coordinate with domestic lawyers in trying the cases. The trials proceeded well soon after and with the continued monitoring of the UN mission to Kosovo improved the quality of justice given out in the war crimes12. The legal adjudicative processes applied both domestic and international law and the Serbian and Yugoslav laws were modified to fit international standards13. The application of the Serbian laws was protested by the Albanians and the Kosovo judges did not want to apply the provisions of the law, thereby causing much confusion in the process. The UNMIK was then prompted to establish new resolutions to modify the applicable laws in the cases14. The laws would still be based on the hybrid application of policies. Moreover, local laws would only apply to the extent that they did not come in conflict with international human rights policies15. These hybrid tribunals provided much assistance to the international courts because they provided partial solutions to legal and capacity problems existing in Kosovo at that time. The hybrid tribunals also provided accountability remedies for those guilty of committing serious human rights violations, thereby providing legitimacy to the legal processes and strengthening the adjudicatory powers of local actors16. Adding international judges and prosecutors to the legal management of the serious human rights abuses improved the legitimacy of the processes within Kosovo and in the international community. The initial attempts of the UN authorities to consult and coordinate with the local populace did not go over well; however without normal legal processes, the process of coordination was very much difficult17. When there were no elected officials to issue any advice, there was no convenient way to settle the issue of who should be consulted without having a significant amount of bias in the situation. Nevertheless, the assignment of foreign judges to the national courts helped create a collaborative practice which would improve the perception of the legitimacy of the institution18. By working with each other and sharing the responsibilities, the involved parties were eventually driven towards consulting with each other. Eventually, international judges assigned to the local courts to handle sensitive cases helped lend support to the perception of independence of the judiciary; it also helped secure its legitimacy across the highly diverse population19. The original perception about Serbian justice was that it was dominated by the Serbs and discriminatory against the Albanians. However, this perception was shifted as the hybrid tribunals manifested impartial decisions covering the cases brought before the tribunals. It is still however important to understand that despite issues on funding, the conception of the hybrid tribunals is strong. Moreover, the lack of resources implies issues on its implementation, but not on the legal framework upon which it is based20. Consequently, the strongest support for hybrid tribunals is the fact that their use is increasing in relation to post-conflict situations. After years of its favourable existence, it has been able to establish an accord in the domestic and international court for Cambodia. Its existence in Sierra Leone has also been seen and its operations are currently underway in East Timor21. This growth in hybrid courts indicates that there are major benefits which cannot be dismissed even in the face of issues which have and will emerge in their application. Fragmentation of international court resolution The expansion of international laws and international adjudicative bodies has been viewed by the courts as a major sign of fragmentation within the international legal system22. Rao discusses that the increase of such tribunals has also increased the risk of conflicting judgments, particularly when courts judge differently on a similar issue23. In the discussion by international law scholar Charles Koch, he cites how the European Court to Human Rights and the ECJ ruled differently on the Vermeulen and the Emesa Sugar cases, and yet the issues raised in these cases were very much similar to each other24. Koch is also quick to acknowledge the fact that the reason why international forums have increased is due to the fact that international law has become a highly relevant body. Moreover, there are new functional challenges of the cases brought before international bodies, including issues which relate to international crimes, trans-border pollution, internet-related crimes, international terrorism, and similar issues25. The role of the ICJ is to review the decisions of arbitral tribunals. In two ICSID cases which were forwarded by a Swiss Company SGS (Societe Generale de Surveillance) against Pakistan and the Philippines, the arbitration bodies established conflicting decisions in relation to the umbrella clauses. The umbrella clauses mandate that host states specify that they have to comply with responsibilities in relation to investments in their areas by investors and other parties party to such an investment26. The conflict is apparent in the SGS v. Pakistan case where the court did not agree to the notion that breaches in the contract with a state take the form of violations of international law. In the SGS v. Philippines case, the tribunal complied with the provisions of the umbrella clause27. The tribunal in the SGS v. Philippines case supported its decision by rejecting the precedent under the ICSID Convention or international laws. In this case, the role of the ICJ is to develop a common legal opinion, one which can materialize in relation to investment tribunals which are partly applying the decision in the Pakistan and in the Philippines case28. The ICJ in effect, would serve to settle issues between conflicting tribunals, as in the above conflicting cases, ensuring the fair and legally justified evaluation of contending parties and issues. Other cases have been controversially evaluated by international tribunals. This was apparent in the ICSID case of Maffezini v. Spain where an Argentine investor filed a suit against a member of the EU29. The arbitration tribunal allowed the petitioner to utilize favourable settlement policies, not the policies contained in the Argentina/Spain BIT. As various case tribunals have applied the Maffezini decisions, other decision tribunals have not30. In effect, there is a disagreement as to the coverage of the MFN treatment and such disagreement is one which has to be settled by the ICJ. In relation to conflicting decisions of tribunals, the function of the ICJ is to establish the cooperation of tribunals with each other by establishing neutral information about the law in relation to the dispute at hand31. As such, in relation to the conflict in the Maffezini v. Spain case, the function of the ICJ is to provide the tribunals with the crucial data which they can use in order to settle the issue. There is the acknowledgement on all sides of the fact that states may come into conflict with each other when they carry out actions which violate treaties32. Tribunals help provide some form of resolution to these conflicts by establishing data about the specific meanings of the agreement and the overall body and nature of the violation. In instances when states conflict with each other in relation to these conventions and treaty provisions, the role of the ICJ is to establish facts and to help develop rules, or even apply the current policies to new circumstances33. A significant issue in investment arbitration was seen in the Lauder/ CME arbitration against the Czech Republic where the Lauder tribunal upheld that even as the Czech Republic committed serious violations of its obligations under the BIT with the US, these violations did not create liability34. This decision was relied on in the case brought forth by the CME citing that its violations should be ruled in a similar manner as in the Lauder case. A partial award in the CME case was rendered, an award which was opposed to the decision in the Czech case35. The Czech Republic attempted to dismiss the decision in the second award to little success. In this case, the role of the ICJ is once again clear. In instances of conflicting interpretations and decisions, the opposing states and tribunals need to cooperate with each other and the ICJ is the most appropriate body to establish such cooperation and coordination36. The cooperation in this case can be carried out through explicit agreements or through value-generating behaviour in the form of conventions and customary international law provisions. The ICJ has a significant role in relation to treaties where it functions to establish real information about the treaty and to ensure that each member state complies with the treaty obligations. In relation to conventions, the ICJ functions to interpret the customary provisions of international law and establish each state’s compliance with these provisions37. This scenario can however only be effective if the states which are at the losing end comply with the judgment mandated. If the defendant is the losing party, then it is obliged to make reparations for its violations, and if the complainant loses, he must drop the charges against the defending party38. The function of the ICJ is to ensure that the contending parties finalize the decisions of the courts by complying with its mandates including the payment of reparations or possibly yielding territories. These mandates however may not always be complied with by opposing states39. The ICJ then functions as an overseer, as a supervising agency seeking to ensure the compliance with the judgments by the parties and proposing further adjudication as a means of resolving issues between states40. The ICJ also functions to interpret treaties and conventions in ways which maximizes its impact on all the parties involved. The ICJ may consider various outcomes in relation to armed conflicts or wars, and in order to prevent negative outcomes in these conflicts, its function is to decide on issues only after considering accurate, including sensitive data in relation to the conflict41. For all intents and purposes, the ICJ must not allow the personal preferences of states and contending parties to dominate the decision-making process. Moreover, these decisions must not be based on states and their preferred tribunals or their national loyalties. The ICJ functions to serve as the unbiased mediator, ensuring that the decision-making process of all involved parties, especially court tribunals is not vulnerable to the whims and biased preferences of opposing parties. In a discussion by Charney, he emphasizes that there is no issue of fragmentation in international law with the presence of various international courts42. His assessment of the legal opinions established that there was a general conformity in the doctrines of international laws, treaties, and state mandates. Moreover, the conformity is also based on an improved imposition of compensation for injured parties. Major differences in decisions from these varying courts did not cause much alarm; and these differences expressed the disparity in the purpose and the subject matter within these courts, especially in terms of interpreting human rights43. In effect, there may be differences in the doctrines in terms of state responsibilities for the failures in applying affirmative methods of protection, especially when the International Court of Human Rights and other human rights tribunals have secured standards which are higher than those set by the ICJ44. By example, the territorial conditions established by the state in accepting the international court’s jurisdiction, which have been supported by the ICJ but rejected by some countries, may be based on the fact that a country may follow provisions of the law based on tribunals, but they may reject the decision because they are not part of the ICJ45. Nevertheless, some tribunals have allowed for the creativity and development of the law via dialogue among involved parties. This has been seen in the implementation of maritime laws where dialogue between the ICJ and the ad hoc arbitration tribunals has been carried out46. Maritime disputes are an area where the ICJ has often chosen to cite other tribunals and the some hard rules have forced discretion among the courts. Issues have been seen in other areas and these have gradually become severe as the number of international cases individuals involved in the cases has also increased. Differences in doctrines applied may sometimes lead to varying outcomes in different forums or courts. In instances where these decisions affect the environment or health, discussions have to be carried out in order to establish clear decisions and processes47. The International Court of Justice cannot afford to ignore the decisions and actions of other courts, especially when they use their own principles in establishing strong decisions for their regions to apply. It is also important to note that the various courts addressing several specific issues have established adequate rules in resolving overlaps in jurisdiction48. The ICJ has already encountered this issue in the Pan American v. Argentina and related cases when the legality of inter-state arbitration awards has been questioned by losing parties, and it has taken extra precautions in avoiding the destabilization of current law-governed decisions from other international courts49. The courts have still taken precautions towards implementing coordination with the other international courts and institutions, especially when the cases brought before the courts involved violation of human rights. This was apparent in the case of Nicaragua in armed conflicts in the Congo when human rights violations committed by a state were not justified as valid retaliatory actions. The legal processes involving provisional measures in international tribunals have a chaotic quality. And it seems to imply the risk of injustice in some cases, and the diminishment of the respect for these provisional measures, especially those which are not well-supported, and which might support forum shopping50. In instances where the case of New Zealand and Australia in relation to Japan conflict regarding bluefin tuna, it may be possible for the binding nature of the International Tribunal for the Law of the Sea (ITLOS) policies to impact on making choices under Part XV of the Law of the Sea Convention, not so much on seeking the jurisdiction of the ICJ under Article 36(2) of its policies51. In a paper by Tullios, he emphasizes the fact that the relationship between the ICJ and the ITLOS in terms of jurisdiction is very complex52. There is a large possibility for ITLOS cases to not be limited to a small group of states, and the reach of their jurisdiction may cover a wider territory or be more applicable in the wider analytical context. The ICJ is a real world court which is often confronted with a difficult political issue which often compromises its ability to settle issues. Various issues have been presented above on the efficacy and strength of the ICJ which is often compromised by the presence of multiple courts. It is incumbent upon the United Nations as a governing body to uphold the central role of the ICJ as an international adjudicative body, one which has a “role that reaches beyond mere dispute settlement and puts the Court in a position to contribute to the development of the principles of international law governing the international society generally”53. The impact of the ICJ can be improved by its judges and in how they conceptualize the real function of the ICJ in the global context. In effect, its judicial policies, as well as technical efficiency need to be upheld even in the face of legal difficulties and tribunal conflicts. Opinion: What should the relationship be? After considering the above discussion, there should be a coordinated or complementary relationship between the ICJ and the other international courts, including the hybrid courts and regional courts. The other international courts offer an alternative and complementary resort to international justice54. These courts are not necessary utilized in order to replace the regular international processes; instead they can function as supportive legal mechanisms for the ICJ. As manifested in the Kosovo case, the use of the hybrid courts provides complementary assistance to the ICJ and other international tribunals55. The overwhelming nature of some of the international cases, especially when they involve a large major and serious incident of war-related atrocities, cannot be adequately managed by the ICJ alone, and the hybrid courts, as well as other regional courts help support the adjudication of these cases56. The suspects and the victims of the atrocities also have other remedies or options for their cases, and the gaps for possible atrocities in the judicial processes can be reduced. The ICJ can also sometimes be ill-equipped to handle the myriad cases which often emerge from wars and conflicts, and local courts are also inadequately equipped with the necessary resources to manage the same. Except when deemed under the exclusive jurisdiction by the Security Council, the ICJ allows the byplay of its complementary nature, especially when the local courts are unwilling or unable to consider judgment57. A huge number of cases cannot be adequately resolved by the local courts and as a result, these cases would likely outnumber the cases which might actually be brought to the jurisdiction on the ICJ. In these instances, the hybrid courts, the international and regional courts play a crucial role in improving the capacity of these case proceedings and to put to trial those who are guilty of atrocities. The success of these courts would be largely based on the support and human resources they have and they receive58. Although these are issues which reduce the efficacy of these smaller courts, there is no denying the fact that the aid which these courts can give is highly beneficial for the promotion and protection of international justice. In the current context of expansion in the international legal activities, the development of obligations seems to call for the establishment of new bodies which can control the fulfilment of state obligations and responsibilities. It would not be prudent to view the increase of courts and international institutions as having negative impact on the international juridical system59. In fact, it is undeniable to note that with the growing complexities of legal considerations at the municipal level, new jurisdictions and court systems can secure the efficient management of legal issues and obligations by establishing a more precise means of interpreting legal provisions and processes60. This precision can be achieved through the involvement and coordination of other international tribunals and courts. It may also be important to argue that the international legal order is gravitating towards affirming the complexity of legal systems61. The establishment of the new judicial and quasi-judicial processes must be viewed in terms of their long-term impact, especially in reducing and eliminating international processes, and keeping away from the control of third parties. In effect, the increase of courts also increases the implementation of justice within international disputes. Securing such justice is a favourable means of appreciating the value and the existence of legal processes62. Moreover, it assists in making international law an objective, not a subjective process. As it is secured by the legal appreciation of its subjects and of the cases, the presence of the various international jurisdictions is a strong step towards establishing a significant judicial function. There are dangers involved in the new jurisdictions and the growth of international tribunals, especially with the danger of establishing the myth of autonomous sub-systems which have the apparent tools of independent controlling legal processes63. These subsystems function may function in the international level and may preclude the application of international basic principles. This has been seen in the European Community, based on the juridical actions of the Court Justice of European Communities which insisted on the autonomy of the European legal processes, over and above the international legal order64. This same trend is supported in some circles involving specialized technical experts and diplomats, including the international protection of the environment. However, this trend can be avoided with the strict application of the international legal processes and the protection of the jurisdiction of the ICJ, as well as the monitoring of the regional and hybrid courts. Conclusion The discussion above presents the relationship between the International Court of Justice and the international regional courts and tribunals. The discussion brings to mind the fact that the ICJ serves as the overall and superior governing body to the international regional courts. In instances of conflicts between these courts, the authority of the ICJ has always been deemed superior. These courts however are not meant to conflict with each other, instead, they are meant to complement each other – to provide the injured parties justifiable means of recourse. They also provide a more decentralized recourse for litigating parties in the event that the international courts are indisposed to resolve the myriad international law issues. The very purpose of regional courts, including hybrid courts is hinged on the administration of justice on a more widespread scale. The ICJ, for all its internationally based principles, cannot adequately resolve all the issues of international conflict and atrocities. Yet, through the presence and advocacies of international regional courts, justice can be sought by most individuals and institutions in almost any part of the world. All in all, international regional courts promote the application of international law by securing their widespread application as well as by promoting the idea that the international processes is a fully-functional and effective legal adjudicatory remedy. There is merit in agreeing with most of the theories and ideas presented above – that the ICJ has a complementary relationship with the international regional courts. For one, the basis for international regional courts’ decisions is on international law, and most applications of international law are set standards which cannot be refuted in any part of the world. Although there may be conflicts in the decision-making processes, these conflicts are often inconsequential and do not impact on the binding nature of international laws and its related institutions. In effect, international regional courts and its related tribunals provide the necessary technical and legal support for the application of international legal standards and its related processes. References African Network of Constitutional Lawyers, ‘African International courts and tribunals’, (2011). (accessed 15 December 2011). J. Beauvais, ‘Benevolent Despotism: A Critique of U.N. State-Building in East Timor,’ (2001) 33 N.Y.U. J. INT’L L. & POL. 1101, 1157-59. W. Betts, S. Carlson, & G. Gisvold, ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law,’ (2001) 22 MICH. J. INT’L L. 371 W. Burke-White, ‘International Legal Pluralism, ‘ (2004) 25 Michigan Journal of International Law, p. 965 W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, (2001) 42 Harv. Int’l L.J. 467. J. Charney, ‘Is International Law Threatened by Multiple International Tribunals?,’ (1998) 271 RECUEIL DES COURS 101. Cruz Varas v. Sweden, 210 Eur. Ct. H.R. (ser. A) at 36 (1991). C. Del Ponte, ‘Statement on the Investigation and Prosecution of Crimes Committed in Kosovo,’ (1999), (accessed 15 December 2011). L. Dickinson, ‘The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo’. (2003) 37 New England Law Review 4 P. Dupuy, ‘The danger of fragmentation or unification of the international legal system and the International Court of Justice, ‘ (1999). 31 International Law and Justice, 719 P. Eleftheriadis, ‘Pluralism and integrity, ‘ St. Anne’s College (2009) (accessed 16 December 2011) G. Guillaume, ‘The Future of International Judicial Institutions,’ (1995) 44 INT’L & COMP. L.Q. 848, 862. L. Helfer, ‘Forum Shopping for Human Rights,’ (1999) 148 U. Pa. L. Rev. 285, 288 B. Kingsbury, ‘Confronting Difference: The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment,’ (1998) 92 Am. J. Int’l L. 713, 723. C. Koch Jr., ‘Judicial Dialogue for Legal Multiculturalism,’ (2004) 25 Mich. J. Int’l L. 876. International Court of Justice, ‘The Court’ (2011) (accessed 15 December 2011). R. Mackenzie and P. Sands, ‘International Courts and Tribunals and the Independence of the International Judge’. (2003) 44 Harvard International Law Journal 1, p. 273 J. Martinez, ‘Towards an International Judicial System’, (2003) 56 Stan. L. Rev. 429, 437. S. Mydans, ‘U.N. Ends Cambodia Talks on Trials for Khmer Rouge,’ (2002) N.Y. TIMES, at A4. OSCE, ‘Department of Human Rights and Rule of Law, Legal Systems Monitoring Section, Kosovo’s War Crimes Trials: A Review,’ (2002) (accessed 15 December 2011 J. Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter- Connected Islands, ‘ (2004) 25 Mich. J. Int’l L. 903. J. Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?,’ (2001) 95 Am. J. Int’l L. 535. E. Posner and J. Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93 California Law Review 1, 6 P. Rao, ‘Multiple International Judicial Forums: a Reflection of the Growing Strength of International Law or Its Fragmentation?,’ (2004) 25 Mich. J. Int’l L. 929 A. Reinisch, ‘The Proliferation of International Dispute Settlement Mechanisms: The Threat of Fragmentation vs. the Promise of a More Effective System? Some Reflections From the Perspective of Investment Arbitration’ (2006), 108 Stanford University < http://iis-db.stanford.edu/pubs/22660/Proliferation_of_DS_Mechanisms.pdf> accessed 27 December 2011. M. Reisman, ‘The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication,’ (1996) 258 RECUEIL DES COURS 9. C. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces Of The Puzzle,’ (1999) 31 International Law and Politics 709 L. Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made Without Charter Revision,’ (1997) 91 AM. J. INT’L L. 652 S. Schwebel, ‘Fifty Years of the World Court: A Critical Appraisal,’ (1996) 90 AM. SOC’Y INT’L L. PROC. 339, 347. H. Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor,’ (2001) 95 AM. J. INT’L L. 46. H. Strohmeyer, ‘Making Multilateral Interventions Work: the United Nations and the Creation of Transitional Justice Systems in Kosovo and East Timor,’ (2001) 25:2 FLETCHER FOR. WORLD AFF. 107 T. Treves, ‘Conflicts between the international tribunal for the law of the sea and the International Court of Justice’. (1999) 31 International Law and Politics 809 United Nations Rule of Law, ‘Tribunals & other mechanisms,’ (2011) (accessed 16 December 2011). UNMIK Regulation 1999/1, (1999) (accessed 15 December 2011). Read More