The Role of Courts in the International Legal System – An EJIL:Talk! Discussion

The Role of Courts in the International Legal System – An EJIL:Talk! Discussion

Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the current anniversary issue of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law“  and Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”. Both are available here.

Participants in the discussion will include, in addition to the authors of the articles, Professor Laurence Helfer (currently Vanderbilt Law School but at Duke Law School from July 2009), Dr Chester Brown (University of Sydney) and Alison MacDonald (Matrix Chambers, London). As always, your comments are very welcome using the comments facility on the site.

The discussion will focus on one of the most significant changes in the international legal system since the publication of the first issue of the European Journal of International Law in 1990 has been the great increase in the number of international tribunals and in the number of cases decided by such tribunals. Looking back, it is hard to remember that in 1989, we had the International Court of Justice and a few standing regional courts (mainly in Europe), but there were no international criminal tribunals, although there was the Iran-US Claims Tribunals (and of course there had been prior Claims Commissions) the arbitration of investment disputes was not commonplace. Also, though there was a GATT dispute settlement system, it had only recently taken on an adjudicatory character, it was no-where as well known or influential as the dispute settlement system of World Trade Organization which succeeded it.

The increase in the numbers of cases decided by international tribunals is also pretty staggering. The GATT provisionally came into force in 1948 and by 1989 the GATT dispute settlement system had dealt with about 70 cases. By contrast, since the establishment of the WTO in 1994, nearly 400 disputes have been submitted to its Dispute Settlement system. The Convention establishing ICSID (the International Centre for the Settlement of Investment Disputes) came into force in 1966 but by 1989 it had only considered about 25 dispute. However, since 1990, ICSID has considered a further 260 disputes. There has also been an astounding increase in the numbers of cases before the European Court of Human Rights, in the Inter-American system as well as in the Human Rights Committee.

To add to this picture, national courts appear to be much more willing to engage in international law so that the consideration of international law questions in judicial proceedings is not the rarity that it used to be.