83
governance decisions. For reasons of brevity, this contribution will refer to such
international judicial governance institutions as ‘INJUGOVINS’.
INJUGOVINS are important for at least three reasons. First of all, international
courts and tribunals have become important players in the interpretation, application and development of international law. They contribute to the peaceful settlement of disputes. As is written on the gavel donated by Leiden University to Bernard
Loder, the first President of the Permanent Court of International Justice, on the
occasion of the opening meeting of the Court in 1922: “Saevis tranquillus in undis”
(I sail in peace through [the waves] stormy waters)—perhaps implying the hope that
the new world court would also help to settle law of the sea disputes. The settlement
of disputes by international courts and tribunals is important, but the performance of
this function is not an act of nature. Neither is the governance of international courts
and tribunals only something abstract. It also means the taking of very specific decisions by INJUGOVINS, such as the election of judges, the adoption of the budget
and sometimes the supervision of the implementation of judgments. International
courts and tribunals can only perform their dispute settlement function if they are
well ‘governed’, or rather ‘governanced’. So the ancient question ‘Quis custodiet
ipsos custodes?’ presents itself also here, in relation to the international judiciary.
Secondly, since it is generally agreed that international courts and tribunals must be
independent, just like and perhaps even more than their national colleagues, it is
important that INJUGOVINS should provide the necessary guarantees for their
independence. Thirdly, INJUGOVINS are also important because they are generally
the bodies to which international courts and tribunals are accountable.
The above should not be misunderstood. The idea is not at all to criticize the
present research focus on the activities of international courts and tribunals themselves, such as ITLOS. The only claim here is that sufficient attention should also
be paid to the role of INJUGOVINS. This is to some extent a terra incognita.
Without their proper functioning, international courts and tribunals cannot perform
their functions properly. Therefore, in the case of ITLOS, it is also important to
enter this terra incognita, or rather this mare incognitum, and to research the role
and functioning of its governance body, its INJUGOVIN SPLOS.
Often, the relationship between an international court/tribunal and its
INJUGOVIN is not without difficulties, or even problematic. For example, in 2007
the General Assembly made certain adaptations to the remuneration of the members
of the ICJ. However, the adoption of this resolution resulted in a significant difference in the remuneration of judges elected or appointed before and after 1 January
2007. This gave rise to a bitter quarrel between the Court and the Assembly. This
situation was only rectified 1 year later. Another example is the difficult relationship
between the ASP and the ICC. For example, in 2015 the President, the Prosecutor
and the Registrar of the ICC wrote an exceptional joint letter to the President of the
ASP, in which they expressed “great concern that a number of issues have been
proposed for discussion at the Assembly which relate to matters falling clearly
within the judicial and prosecutorial competence of the Court”, and urged the ASP
“to ensure that the Court’s judicial and prosecutorial independence is not undermined,
Governance of the International Tribunal of the Law of the Sea: The Role…
governance decisions. For reasons of brevity, this contribution will refer to such
international judicial governance institutions as ‘INJUGOVINS’.
INJUGOVINS are important for at least three reasons. First of all, international
courts and tribunals have become important players in the interpretation, application and development of international law. They contribute to the peaceful settlement of disputes. As is written on the gavel donated by Leiden University to Bernard
Loder, the first President of the Permanent Court of International Justice, on the
occasion of the opening meeting of the Court in 1922: “Saevis tranquillus in undis”
(I sail in peace through [the waves] stormy waters)—perhaps implying the hope that
the new world court would also help to settle law of the sea disputes. The settlement
of disputes by international courts and tribunals is important, but the performance of
this function is not an act of nature. Neither is the governance of international courts
and tribunals only something abstract. It also means the taking of very specific decisions by INJUGOVINS, such as the election of judges, the adoption of the budget
and sometimes the supervision of the implementation of judgments. International
courts and tribunals can only perform their dispute settlement function if they are
well ‘governed’, or rather ‘governanced’. So the ancient question ‘Quis custodiet
ipsos custodes?’ presents itself also here, in relation to the international judiciary.
Secondly, since it is generally agreed that international courts and tribunals must be
independent, just like and perhaps even more than their national colleagues, it is
important that INJUGOVINS should provide the necessary guarantees for their
independence. Thirdly, INJUGOVINS are also important because they are generally
the bodies to which international courts and tribunals are accountable.
The above should not be misunderstood. The idea is not at all to criticize the
present research focus on the activities of international courts and tribunals themselves, such as ITLOS. The only claim here is that sufficient attention should also
be paid to the role of INJUGOVINS. This is to some extent a terra incognita.
Without their proper functioning, international courts and tribunals cannot perform
their functions properly. Therefore, in the case of ITLOS, it is also important to
enter this terra incognita, or rather this mare incognitum, and to research the role
and functioning of its governance body, its INJUGOVIN SPLOS.
Often, the relationship between an international court/tribunal and its
INJUGOVIN is not without difficulties, or even problematic. For example, in 2007
the General Assembly made certain adaptations to the remuneration of the members
of the ICJ. However, the adoption of this resolution resulted in a significant difference in the remuneration of judges elected or appointed before and after 1 January
2007. This gave rise to a bitter quarrel between the Court and the Assembly. This
situation was only rectified 1 year later. Another example is the difficult relationship
between the ASP and the ICC. For example, in 2015 the President, the Prosecutor
and the Registrar of the ICC wrote an exceptional joint letter to the President of the
ASP, in which they expressed “great concern that a number of issues have been
proposed for discussion at the Assembly which relate to matters falling clearly
within the judicial and prosecutorial competence of the Court”, and urged the ASP
“to ensure that the Court’s judicial and prosecutorial independence is not undermined,
Governance of the International Tribunal of the Law of the Sea: The Role…