The Role of the Judge in International Law
Benedetto Conforti
I.
Introduction
In the last ten years, the role of international
and national judges in the elaboration and application of international norms
has grown enormously. With respect to international tribunals, their
multiplication both at global and at regional level, is impressive. It is not necessary to furnish a list here. In
turn, international law is gradually extending its valence to matters which
pertain directly to individuals and consequently, national judges more and more
base their decisions on international law.
II.
International tribunals and self-contained regimes
The multiplication of international tribunals has been the focus of
ample doctrinal debate with the aim of defining or redefining the role of these
judges. Three aspects of the debate seem important.
First, there are risks which may result from a fragmentation of
international law: given that many tribunals, – for instance: human rights courts, the International Tribunal
for the Law of the Sea, the Appellate Body of the World Trade Organization, the
international criminal courts – have sectoral
competences, the greatest risk is of parochial decisions which fail to
take heed of, and therefore compromise, the unity of the international
juridical order.
Second, and connectedly, there is the problem of divergent
interpretation of the same norms by different tribunals.
Third, now that international judges are numerous, what effect will they
have on the elaboration of general international law.
As regards the first aspect, the concept of ‘self-contained’ regimes has
emerged. The question is as to whether or not the specific groups of rules (e.g.,
the norms of the European Union, the human rights conventions, the law of the
sea, international commercial law) created by way of treaties and the sectoral
tribunals which regulate them can be self-sufficient and impermeable to general
international law.
Put this way, the question does not make sense. In reality, the norms of
special(ist) regimes prevail over general law by dint of the ancient rule, that
the particular takes precedence over the
general. However, these regimes are founded upon norms of international law and
it is therefore difficult to argue that general law may not play a role,
particularly by filling a lacuna or resolve ambiguities. It is obvious that the
ascertainment of the extent to which the special regime is subordinate or not
to the general law is a question of pure interpretation. The interpretation will
be more efficacious and it is here that the proliferation of judicial or
quasi-judicial organs controlling these regimes plays an extremely important
role - the greater the sphere of competence of these organs. Indeed, all these
organs tend to sustain that the regimes
under their supervision is self- sufficient .With respect to human rights, the
practice of the international courts and that of the Human Rights Committee
created by the UN Covenant on UN Civil and Political Rights has furnished us
with ample examples. Moreover, even here the practice shows no more than a tendency, more or less
accentuated, depending on the circumstances, and this is true also with regard
to that particularly self-sufficient juridical
order, namely, the European Union Law.
III. The
possibility of divergent interpretations between international courts
A further question, and this is the second aspect to examine, is if the
multiplication of the tribunals might give rise to divergent interpretations of
identical norms, threatening the unity of the international juridical order or
having a deleterious effect on the principle of legal certainty. In the absence
of an ordered hierarchy of international courts, many authors underline the
need for coordination amongst their decisions.
It should be said immediately that, up until now, the examples of
verified divergences are few and are always the same: the most documented is
the discrepancy between the decision of the International Court of Justice in
the Military and Paramilitary Activities
in and against Nicaragua Case (1996) and the International Tribunal for the
Former Yugoslavia (ITFY) in Tadic (1999),
with respect to the notion of ‘effective control’ of a state intervening in an
armed conflict in another state. A further example is the jurisprudence of
courts with respect to reservations to human rights obligations. This case law
would seem to rebut the classic principle -affirmed recently by the ICJ in the
case on its competence to determine a fisheries dispute (1998) and in the case
concerning the aerial incident of 10 October 1999 (2000)- according to which an
invalid reservation excludes the reserving state from the treaty. This clashes
with the norm which stipulates that participation in a treaty may only be based
on a validly expressed consent; according to human rights case law, in such a
circumstance, the applicable principle would be utile per inutile non vitiatur (cf.
the leading case of Belilos by the
European Court of Human Rights, in 1988).
It would seem that the possibility that interpretive divergences between
different courts occur cannot be ruled out. In fact, the fact of divergences
can be considered an important medium for the growth of international law.
Together with the reciprocal influence exerted by courts through the dialectic
process, divergences of interpretation contribute to the evolution of
interpretation of international norms. From the other perspective, divergent
interpretations of international norms are a common feature of domestic courts
(think for example about state immunity), and it would not seem that this
should be considered a danger for international legal certainty; rather it
reflects a healthy dialogue between courts. It should be recalled that the
principal effect of judgments is to adjudicate only between the parties
involved. Thusly, the ultra partes effects,
which of course do obtain, are to be accepted only with caution. We shall
return to this point when discussing the role of the judge in the elaboration
of norms of general international law.
It is also to be said that,
often, the divergences in interpretation of the same norm are justified by the
diverse contexts in which the norm is applied . It is clear, for example, that
though the ICJ and the ICTY differed in their interpretation of the principle
of “effective control” in armed conflicts, this was dependent on the fact, that
the former concerned state responsibility, and the latter, the criminal
responsibility of organs or individuals – hence, the stricter reading of control
adopted by the ICJ was justifiable.
With regard to another example, i.e. that of the legality of the use of
nuclear weapons, it is strange that some
authors regard context-dependent hermeneutics in this area as scandalous. On
the contrary, our opinion is exactly that the legality of the use of nuclear weapons
might be subject to different interpretation
if considered from the different points of view of human rights law and
humanitarian law in armed conflicts.
Correctly, in its Mox Plant
decision of 2001, the Tribunal for the Law of the Sea held that, in principle,
a divergence in the interpretation of a norm might be a necessary result of the differences in the respective contexts;
such differences may normally concern
either the object, scope, and preparatory
work of the treaty from which the norm derives or the successive practice of the contracting states.
Subsequently, it has been suggested that interpretive divergences
between courts could increase the incidence of forum shopping. This opinion does not seem convincing. In fact, the
competence of international judges is based on consensus between the parties.
Consequently, it is unclear why, if the parties are agreed, they cannot avail themselves of a judge of
their choice. In cases where unilateral recourse before a judge is admissible, this is nothing more than the consequence of
the acceptance of competence of this judge, manifested once for all by the other party.
Last but not least, mindful of the dialectic and the possibility of reciprocal
influence between courts, it is certainly
utopian to think that the ICJ should play a role of preeminence. Such an
opinion has been upheld, for instance,
by the authors who would assign to the ICJ a kind of competence to give
preliminary rulings, as it is the case of the European Court of Justice
according to Article 234 of the European Community Treaty.
IV. The
contribution of international tribunals to the elaboration of customary norms
The final aspect to examine with respect to the role of international
tribunals is their contribution to the elaboration and development of general
international law.
There is no doubt that the contribution is of extraordinary importance,
a contribution which becomes more extensive with the proliferation of judges. No
small amount of general norms exists that have their roots in international
decisions. This, as is acknowledged, is true above all for the advisory and
contentious activity of the ICJ. It would be enough to cite the rules formed
with respect to reservations in the famous Advisory Opinion of 1951 or, with
regard to the legal personality of the international organizations, in the 1949
Advisory Opinions on Reparation for
injuries suffered in the service of UN, and of 1980 on the interpretation of
the agreement of 25 March 1951 between the World Health Organization and Egypt.
As a consequence, and as always in the reconstruction of the content of
general rules of international law, it is useful and salutary to take as a
reference point, the activity of international judiciary, particularly with the
ICJ in mind. Nevertheless, one should not exaggerate and consider the reference to this source as an
exhaustive indicator of the existence of a customary norm. The present writer has the impression that
the recent studies on the elaboration of customary norms or general
principles of international law is unduly limited to case law, particularly
that of the ICJ. Such an approach overlooks that the decisive word, according
to the classic principles of the diuturnitas
and opinio iuris, must come from the
states, and only the states.
In practice, there are many cases in which the states have demonstrated
their repudiation or their partial rejection of principles affirmed in the
jurisprudence. Recall for example, with respect to the principles which can be
deduced from the Charter of the United Nations, of questions of the earnest
obligation incumbent on states to contribute to the costs which stem from
resolutions of the General Assembly or the Security Council with respect to its
‘actions’ for peace. This obligation was affirmed in the celebrated Advisory
Opinion of the ICJ on The
question of certain expenses of the
United Nations (1962). That Opinion was and is frequently cited to explain the
effects of resolutions of the United Nations. However, in reality, in light of
the decision of the General Assembly in 1965 (confirmed by subsequent
practice), rather than an obligation to contribute, it would seem that the
states are expected to cover this expenditure with voluntary contributions only.
It is contended that another case of this nature is that of the
obligation, enjoined by general international law, to avoid damaging the
environment. As is acknowledged, this obligation, recognized by the majority of
commentators, was affirmed in the Advisory Opinion on Legality of the threat or use of nuclear weapons (1996), and in the
judgment of the Gabčìcovo-Nagymaros
Case (1997). The same was already proclaimed in the
Stockholm Convention (1972) and the Rio Declaration (1992), neither of which is
binding. But what, is the significant state practice? It is difficult to give a
positive response. In fact, the matter is only the object of specific conventions that are principally concerned with
responsibilities for environmental damage in internal legal orders
It is further impossible to say that the category of obligations erga omnes, which have their roots in a dictum in the Barcelona Traction judgment (1970), have been the subject of
certain and precise application in state practice. In particular, it is not
clear what ‘omnes’ can do in the event of a violation of an obligation of this
nature, as demonstrated inter alia by
the divergent opinions and reservations which states registered to the work of
the International Law Commission on the responsibility of states.
This is not the place to search for other examples. All that should be
said at this point is that the problem of the relationship between judicial
practice and the practice of states could be the profitable subject of a
scientific analysis.
V. Domestic
judges and international law
Moving onto domestic judges, it is clear, first of all, that their
decisions contribute to, and are, interpretations and elaborations of
international norms both customary and conventional. In a sense, their
influence on the evolution of international law is more ‘direct’ as they
function as state organs and, as a result, their practice in this capacity has to be considered as state practice.
That said, the author of this note has constantly fought, either against the dependence of the judiciary upon the executive when it comes to questions of
international law, or the tendency to exclude or restrict the review
by national judges over the international
legality of actions and inactions of their Governments. In brief, the following
rules, upon which the present author has had the occasion to insist in various fora, and which were adopted by the Institut
de droit international in the
- International law rules should be treated in a manner similar to rules
of domestic legal orders. In particular, the judges should enjoy the same
liberty in the elaboration and interpretation of the former as they do with
respect to the latter.
- The determination, naturally limited to the specific case under
adjudication, of the existence, the validity, the modification or extinction of
an international treaty should be carried out in total judicial independence.
In reality, the practice in many countries of requesting the binding opinion of
the executive is slowly dying out.
- Judicial fact-finding about relevant international conduct should be
carried out with equal independence. In this case too, anachronistic rules
subordinating the judiciary to the executive branch are gradually disappearing,
most noticeably in civil law countries .
For example, as early as the 1980s, the French Court of Cassation held that its
opinion on the reciprocity of application of international treaties could be
arrived out without reference to the executive. Even the
- The notion of a political act or question which acts as a limit on the
court’s powers of review should be repudiated in cases when the international legal obligations of the
forum state is in question. In fact,,
even with respect to internal law, the eighth-century notion of political act
or question is progressively being revised in civil and common law countries alike.
- In the cases in which, pursuant to the international private law of
the forum, a foreign law falls to be applied (e.g., in expropriatory proceedings), that law should be set aside
if it violates a rule of international law.
VI.
Conclusion
The proliferation of international tribunals represent a clear erosion
of the old maxim according to which international law boasted ni lois, ni judges, ni gendarmes. With
the exception of the gendarmerie, still missing, no doubt can be had about the existence of international conventions (les lois) and judges. Additionally, there is a growing willingness
of national tribunals to tackle the interpretation and application of
international norms, an area which, in the past, either because of inadequate
judicial familiarity with international rules, or parochial prejudices, was
considered the exclusive preserve of the executive. This strengthening of the
judicial function, so long as it does not degenerate into “the government of judges” , must be greeted with enthusiasm.