The role of international tribunals in managing coherence and diversity in international law.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 3:00 p.m., Thursday, March 24, by its moderator, Kevin Gray of the Canadian Department of Foreign Affairs and International Trade, who introduced the panelists: Andrea Bjorklund of the University of California at Davis School of Law; Valerie Hughes of the World Trade Organization; Stephen McCaffrey of the University of the Pacific, McGeorge School of Law; and Giorgio Sacerdoti of the World Trade Organization Appellate Body.


Good afternoon, everybody. Thank you all for attending. My name is Kevin Gray. I work at the Trade Law Bureau at Foreign Affairs International Trade Canada, and even though I work there, I will be offering my services a moderator in my capacity as an individual, and anything I may say or will say does not reflect the views of the Government of Canada nor the Department of Foreign Affairs International Trade.

As opposed to some of the other panels you've heard, we are going to have more of a roundtable discussion. Despite being a rectangular table, it will be a roundtable discussion. The way we will organize it is, I will pose a series of questions, or clusters of questions, and allow all four panelists to provide views and pick a particular question they want, but they have all told me that they will react to each other's answers, so I will not have to prompt them, and based on our discussion at lunch, I do not think it will be a problem.


In addition to that, what we would like to do is after we have five clusters of questions, we will offer the opportunity for each and any of you to provide questions. I ask you to go to the front. Please identify yourself and your affiliation, and I would ask you to pose maybe one, arguably two questions, but please keep them short because there are other people who probably will want to ask questions as well.

So without any further ado, I think we can start. As all of you are aware, the theme of the Annual Meeting is "Harmony and Dissonance in International Law." In devising this panel, we thought, well, if there is either harmony or dissonance, what is the role of international tribunals in contributing to that? Are they sources of either or are they more or less responders to these particular frictions?

So, panelists, my first question, or series of questions, deals with your view of public international law as a discipline itself. Are we looking at international law as something of an integrated system or a composite of various parts? And in that context, can you address whether intemational tribunals or intemational dispute settlement system itself contributes to these perceptions? Do you see international tribunals as having a tacit or unwritten rule to play and ensure that intemational law is interpreted harmoniously or coherently? Altematively, do you find, that in the twenty-first century international law has become overspecialized and has thus created silos in the system? And then finally, have international tribunals become mechanisms that are only useful for the specialized legal regime that created it?

Who wants this one? Andrea.


I would like to start out by talking about the power of international tribunals and whether they're too specialized. I think it's tempting to talk about fragmentation as a bad thing--it has negative connotations, it suggests we had something that was a uniform whole and then something shattered it, leaving it in fragments on the ground that we have to pick up our brooms and dustpans to clean up--and I think that probably overstates the unity of international law that ever existed. We've had specialized tribunals for a very long time. One can even think back to the Lex Mercatoria tribunals of the twelfth, thirteenth, and fourteenth centuries. So I think it's useful not just to focus on fragmentation as a negative thing but also to think about the values that come with specialization, the value of having people with deep knowledge of one particular area of law and being very well-versed in it and able to make decisions under it.

I would offer a different conception that specialization can be good. Fragmentation, so to speak, can lead to expertise and development of law in a coherent way. In fact that's almost inevitable when you look at the treaties that create these tribunals, which tend to give them a limited jurisdiction and a limited purview. Indeed, one of the sources of legitimacy of tribunals is that they stick to their mandate, do what they do best and what they've been entrusted to do, and if they reach too far beyond that, they risk being criticized for overreaching.


Well, I think it's true that the international system is at the same time a common system, the law of nations, and also a composite of various parts. Of course, now with new actors, the new role of the individual, the mechanism for the protection of human rights, the role of multinational investors, the specialized arbitral tribunals or tribunals dealing with the protection of foreign investors, the system is composite. I agree with Andrea that, of course, specialized tribunals apply the body of law to which they belong within their institutional framework and evaluate whether these rules have been not violated by the claimant or the respondent, in the usual way in which these disputes arise and are decided.

At the same time, the big challenge nowadays is to maintain the unity of the law and the strengths of the system that covers broader sectors and involves new actors. It's also potentially one of the weakness that, even working with online databases and calculators and so on, there is a risk of fragmentation in one tribunal ignoring what the other tribunal does. Let's not forget that tribunals are not academics--they react and decide based on the interplay of the parties, and the evidence in law and in fact that is presented to them. So although they are surely empowered to look beyond and investigate by themselves what the law is, they have a limited capacity, and it may well happen that decisions inadvertently go in different directions.


Giorgio, I'm going to pick up on that point before, and Val can probably pitch in, too. As a member of the international judiciary, do you find that there are mechanisms in the system so that you can learn from judges and other tribunals both based on what the words of the judgment say, but also in terms of practices, dealing with procedural issues? Is there a forum for that type of interchange?


Well, I don't think there is a formalized forum, although international judges tend to maintain personal contacts and often come from a similar background. You know, people were surprised in Geneva when I was appointed to the Appellate Body of the WTO, that I had not been a pupil of Jackson at Michigan, for instance.


But I'm a good friend and admirer of him. And, of course, you must maintain and have curiosity. Also, of course, international courts have specialized secretariats made of able young lawyers who make reports and do research and assist the judges and supplement what the parties may bring to their attention. Although maybe this is not always reflected in the decision, that there are citations of precedents of other tribunals, I think that by and large this is present in the minds of the judges. It may be a little bit more difficult for arbitral tribunals like ICSID tribunals because they are not organically supported and don't have the benefit of the independent research and so on that permanent courts have.


Right. Val, maybe you can reflect on that from an institutional perception, what type of inroads you can make.


Well, we don't have anything formal in terms of a way of keeping in touch with what other tribunals are doing or the secretariats of others are doing. We did have, when I was at the Appellate Body Secretariat, an informal chat with the ICJ registrar, and just had an exchange of information. We would send them copies of our stuff, our annual report; they would send us copies of theirs. It was quite informal. But I must say that we were worried about doing this too formally because we thought the members would not appreciate the fact that we were talking to tribunals that perhaps had very different mandates than the Appellate Body or the panel. So we thought it was useful to have these exchanges but not in any formal way.


Steve, I want to ask you, looking at it from a practitioner's perspective, appearing several times before the ICJ, if the inverse is true. Is there a conduit for the International Court of Justice to learn about the judgments in other tribunals, other processes, or is really the only mechanism through the arguments of the countries themselves that appear before them?


Well, I don't think there's any formal mechanism. As we were talking at lunch today, this is an informal relationship. It's still one that existed, or exists, I'm not sure, between another dispute settlement mechanism on the international level, and the Court, which is quite a radical notion actually.


Many members of the International Court sit on arbitral tribunals. They know what's going on. Arbitral tribunals--I think of the Iron Rhine arbitration, for example--take into account judgments of the Court, even though they may be ad hoc. So these judges don't live or operate in a vacuum, even the ones who don't sit on arbitral tribunals. Obviously they stay current. They're interested in international law, they stay current, the ones I know at least, on other decisions and activities of other tribunals. Unfortunately, this doesn't make it into the Court's judgments. And I think anyone who had read a judgment or two of the Court will appreciate this, unless it comes out in a separate or dissenting opinion.

I did want to respond to something that...

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