82
the sea. Leaving aside arbitration, the twentieth century saw this become a responsibility of the International Court of Justice (and its predecessor, the Permanent
Court of International Justice), as part of its general jurisdiction. In addition, by the
end of the twentieth century, this task was also given to a specialized court, ITLOS,
that has been in operation since 1996 and has gradually built up its role and
authority.
The creation of ITLOS is not an isolated development. In recent years, we have
also seen the creation of new international courts and tribunals in a number of other
areas of international law.
1
Until 1990, only six international courts and tribunals
were established. Many more have been created since then. At present there are
some 30 international courts and tribunals, and this number is at least 50 if international administrative tribunals are also included.
2
This relatively new development,
of which ITLOS is part, raises new questions. First there has been a debate about
possible dangers involved in the proliferation of international courts and tribunals.
More recently, debates are taking place about ‘judicial dialogues’ (references by
courts and tribunals to each other’s decisions), about the legitimacy of international
courts and tribunals, and about what is called the judicialization of international law.
In most of the research in this area, the focus is very much on the international
courts and tribunals themselves. Such a focus is fully justified, since the mushrooming of these courts and tribunals has not only fundamentally changed the international legal order, but also international relations generally.
3
However, at the same
time attention should also be paid to the governance institutions of these courts and
tribunals. As is the case for national courts and tribunals, international courts and
tribunals, while independent, do not operate in isolation outside the legal order in
which they are embedded. The fundamental differences between the international
legal order and the more centralized national legal orders imply differences in the
governance of courts and tribunals. At the international level, each international
court or tribunal has its own governance institution(s). Some examples are: the
Assembly of States Parties (ASP, for the ICC), the General Assembly and the
Security Council (for the ICJ and for ad hoc criminal tribunals), and the Meeting of
States Parties to the Law of the Sea Convention (‘SPLOS’, for ITLOS). These are
the institutions that elect the judges, adopt the budget, and take other important
1 There is no fundamental difference between international courts and international tribunals. In
national contexts, the name ‘tribunal’ is sometimes used for specialized and/or somewhat less
formal judicial institutions (e.g. labour or employment tribunals in common law countries). In
some cases this is also done at the international level (‘international administrative tribunals’), but
often the terms ‘court’ and ‘tribunal’ do not seem to have their own specific meaning. International
judicial institutions are often named ‘Court’ (e.g. ICJ, ICC), but also sometimes ‘Tribunal’ (e.g.
ITLOS, SADC Tribunal).
2 See the “Taxonomic Timeline” in Romano et al. (2014). As far as administrative tribunals are
concerned: for many years only the ILO and UN tribunals existed. In 1980 the World Bank
Administrative Tribunal was created, and since 1990 17 more administrative tribunals were
established.
3 See further Alter (2014).
N. M. Blokker
the sea. Leaving aside arbitration, the twentieth century saw this become a responsibility of the International Court of Justice (and its predecessor, the Permanent
Court of International Justice), as part of its general jurisdiction. In addition, by the
end of the twentieth century, this task was also given to a specialized court, ITLOS,
that has been in operation since 1996 and has gradually built up its role and
authority.
The creation of ITLOS is not an isolated development. In recent years, we have
also seen the creation of new international courts and tribunals in a number of other
areas of international law.
1
Until 1990, only six international courts and tribunals
were established. Many more have been created since then. At present there are
some 30 international courts and tribunals, and this number is at least 50 if international administrative tribunals are also included.
2
This relatively new development,
of which ITLOS is part, raises new questions. First there has been a debate about
possible dangers involved in the proliferation of international courts and tribunals.
More recently, debates are taking place about ‘judicial dialogues’ (references by
courts and tribunals to each other’s decisions), about the legitimacy of international
courts and tribunals, and about what is called the judicialization of international law.
In most of the research in this area, the focus is very much on the international
courts and tribunals themselves. Such a focus is fully justified, since the mushrooming of these courts and tribunals has not only fundamentally changed the international legal order, but also international relations generally.
3
However, at the same
time attention should also be paid to the governance institutions of these courts and
tribunals. As is the case for national courts and tribunals, international courts and
tribunals, while independent, do not operate in isolation outside the legal order in
which they are embedded. The fundamental differences between the international
legal order and the more centralized national legal orders imply differences in the
governance of courts and tribunals. At the international level, each international
court or tribunal has its own governance institution(s). Some examples are: the
Assembly of States Parties (ASP, for the ICC), the General Assembly and the
Security Council (for the ICJ and for ad hoc criminal tribunals), and the Meeting of
States Parties to the Law of the Sea Convention (‘SPLOS’, for ITLOS). These are
the institutions that elect the judges, adopt the budget, and take other important
1 There is no fundamental difference between international courts and international tribunals. In
national contexts, the name ‘tribunal’ is sometimes used for specialized and/or somewhat less
formal judicial institutions (e.g. labour or employment tribunals in common law countries). In
some cases this is also done at the international level (‘international administrative tribunals’), but
often the terms ‘court’ and ‘tribunal’ do not seem to have their own specific meaning. International
judicial institutions are often named ‘Court’ (e.g. ICJ, ICC), but also sometimes ‘Tribunal’ (e.g.
ITLOS, SADC Tribunal).
2 See the “Taxonomic Timeline” in Romano et al. (2014). As far as administrative tribunals are
concerned: for many years only the ILO and UN tribunals existed. In 1980 the World Bank
Administrative Tribunal was created, and since 1990 17 more administrative tribunals were
established.
3 See further Alter (2014).
N. M. Blokker