Discuss about the Multiplicity Of International Court.
The present report is based on the possibilities or dilemmas regarding the establishment of multiple courts in the sphere of international legal order. Therefore, it can be stated that the report will discuss about the topics related to international law and the principle of it and will throw lights on the reason and outcome of the multiple courts and tribunals. It should be stated in this case procedural applicability is placed in an important role and the matter with international credibility are of special importance[1]. Thus, quick relief is required in these cases. It is no doubt to state that a judicial dispute should be resolved on urgent basis and that process can be hampered if contradiction regarding the decrees will take place. It has been observed by many cases that proliferation of international courts may cause serious breach if there is any contradictory jurisprudence exists[2]. It is true that it was an unbelievable fact to imagine multiplication of international court for the settlement of third party contradiction and now the whole world is facing the problem. However, all the aspects of existence of multiple of courts are to be discussed in the report and an attempt has been made to understand the base of the same.:
The present topic is based dilemma faced in the international law regarding the overseas disputes[3]. It is necessary in this case to understand the meaning of international law before discussing about the factual difficulties[4]. The main objective of the international law is to bind the states and the other entities of international recognition with certain rules. It has been mentioned under the several provisions of the international law that the main aim of the law is to establish equality among all the states. It has been mentioned under the charter of the United Nation that it is the discretionary power of the states to adopt the rules of the international law[5]. Public international laws are concerned regarding the matters like terrorism, diplomatic relation, disputes regarding the trade. It is the ultimate duty of the international law is to secure the interest of the humankind in general and it is implemented policies regarding the same. therefore, it can be understood that international law plays an important role to resolve the disputes and policies are helpful to settle down the dispute amicably though it is on the will of the nation whether to accept the decision of the court or not. There is a contradiction made regarding the topic that how to take the policies implemented by the international law? There is a confliction whether to take the same as an optional consideration or to regard it as positive morality.
There is a growth observed regarding the overseas dispute and it can be stated that the international law is playing an important role here. it has been observed that there is a hike of establishing international court to secure justice[6]. These courts are empowered with certain compulsory jurisdiction. As the application of the international law depend on the consent of the states, the rules and principles of the international law are difficult to ascertain.
International legal personalities are certain kinds of institution that deals with the claims regarding the breach of law and if there is, a claim regarding the immunity from the national jurisdiction arises[7]. A tiny different can be observed between the international person and the international personality. States are regarded as the international person whereas international organisations are regarded as the international personalities. However, United Nation is considered as the international person in lieu of international personalities, though it enjoys less capacity if compare to the State. The main objective of the international legal personality is to secure the rights of the self-determination so that every State can keep their political status as per their social and cultural development. There is an international court of justice established under the provinces of the United Nation that dealing with the international disputes. It has been stated by Gilbert Guillaume, one of the presidents of the court of justice that certain contradictions have been made regarding the establishment of multiple numbers of international courts. It has been observed that there are too many instruments present to resolve the third party dispute.
It is clear from the objective of the international law that the rules implemented by it are binding in nature but its applicability depends on the consent of the states. International laws are implemented policies in the form of the European Court of Human Rights and International Criminal Court[8]. It has been stated under the Article 38 of the International Court of Justice that there are certain general principles exists in the legal system of the International law[9]. The general principles can be categorised as laches, good faith, and impartiality regarding the decision of the judges. It is the main motto of the international law to promote the peace and integrity within the global sector. The importance of international law arises after the World War II and since then, it is improving its standpoint to resolve the internal disputes and to chalk out the effective policies regarding the same. The principle of equity and estoppel has been established through the international law system. It is to be kept in mind that the equity and estoppels principles are not followed the rules like common law.
After the World War II, it became important to establish an institution that can resolve the disputes regarding the international matters and establish integrity within the globe. It was the main objective of the law maker to develop the standard of the dispute settlement and maintain a traditional equity within the sovereign states[10]. International courts are following the principle of international law and delivers judgment that becomes binding to the consent countries. Since its establishment, the institution has gained many success and continuing its nature of commencement in the sector of international disputes.
The nature regarding the international dispute is growing and therefore, a growing tendency regarding the establishment of multiple numbers of courts cropped up[11]. The main dilemma regarding the same accrues whether the outcome of such establishment is leading towards the jurisprudential confliction between the courts or it will widen the scope of the international decisions. Therefore, it can be stated that the importance of understanding the reasons behind the jurisdictional confliction is necessary.
The main danger regarding the establishment of the multiple international court is to create contradiction between two decisions and it may harm the unity of the international court. The nature of the contradiction can be either active or passive. An interpretation regarding the reasons is needed. The main problem regarding the international courts is that there is no precedential power exists. In LaGrand case, it has been observed that the decision of the International Court of Justice regarding the consular relations had not been followed up in the case of Loizidou. The same situation has been observed in the case of Nicaragua regarding the armed forces’ activities and Tadic case. In the former case, the International Court of Justice had made certain findings on the responsibilities of the armed forces, which had been denied by the International Criminal Tribunal in the later case[12]. Contradiction may also arise if same case has been filed before two judicial bodies with certain overlapping jurisdiction. The same thing happened in Swordfish case that involves the flag on the Chilean vessels.
The second problem regarding the multiplication of the international court is that it may harm the base of unity regarding the international law[13]. The main problem of the international law is that in this case, there is no fixed body of rules and the provisions are uncertain in nature. The power of the law making bodies within the international legal system becomes precise but in the dispute matters, the role of the judges is not effective. Therefore, there is a sheer possibility regarding the existence of jurisdictional contradiction.
It is a fact that the nature of the international law is not binding and the applicability of the same is depending on the consent of the States in general, but it can be stated that the law will be implemented on the states equally. The international law consists of rules that can be either community based or custom based[14]. It has been stated under the international law that the decision of the court is binding upon the member states of the United Nations. However, it should be bored in mind that the contradiction regarding the decisions of different courts related to all the similar nature of matters not to be taken place. One of the main reasons regarding the contradiction is that where the interpretation of the rules are applied by different judicial bodies. It has been analysed by many of the researchers that there are two main reasons regarding the conflicting jurisdiction. First is the establishment of multiple number of courts and tribunal and the second reason is the interpretation of provisions that accrues in different context. One of the common fields of confliction is the human right related matters.
According to Article 33 of the UN charter, it is the discretionary power of the states to choose the way to resolve the matter and in this aspect; it is their will to maintain the decision of the international courts or tribunals. It is to be remember that there is no judicial hierarchy present in the international law and that creates certain disadvantageous consequences regarding the international jurisdiction. Certain doctrines are helpful to avoid the contradiction in the national judicial body. However, the same will not be applicable in the case of the international law. One of such doctrine is the stare decisis. According to this principle, if there are cases of similar nature, the court will follow the precedents and it is not necessary to interpret the same principle of law or the same categories of legal nature. However, in case of international law, there is no such provisions of stare decisis and therefore, contradiction regarding the different courts or tribunals can be observed. The doctrine of lis pendens is another doctrine regarding the avoidance of litigating contradiction. It can be stated that if, in the international law, there will be certain provisions regarding the same applied, jurisdictional contradictions can be removed in a greater way.
One of the most common principles of contradictory jurisdiction is the difference between the Nicaragua case and Tadic case.the subject matter of the case evolved with the conception of armed forces and their role in the provinces of different countries[15]. It has been decided by the international court of justice in Nicaragua’s case that the armed forces are to be controlled if there is any evidences regarding the violation of humanitarian law. However, in Tadic case, the decision made by the court contradicts with the decisions regarding the Nicaragua’s case. Therefore, many of the researchers consider the grounds of the contradictions as the decisive difference[16].
Conclusion:
Therefore, it can be stated that the existence of multiple courts or tribunals to resolve the matter with international recognition can be created a number of contradiction over similar kinds of cases. It should be taken into consideration that the main objective of the international law is to create integrity among the States and resolve the disputes by maintaining peace. If there is dispute arises regarding the different decisions of the international court, the objective of the international law could not be achieved. It is clear from the above mentioned paragraphs, it is clear that multiple courts with over lapping jurisdiction will sloth the flow of justice and the human rights will not be secured in this way.
References:
Akande, Dapo, and Antonios Tzanakopoulos. “The International Court of Justice and the Concept of Aggression.” (2015).
ARBITRATION, ADHOC, and I. CASE CONCERNING TERRITORIAL. “Decisions of International Courts and Tribunals.” ICLQ 57 (2008): 701-709.
Bernhardt, Rudolf. “Encyclopedia of public international law.” (2013).
Byers, Michael. “Terrorism, the use of force and international law after 11 September.” International & Comparative Law Quarterly51.2 (2012): 401-414.
Case, Nicaragua. “Case concerning military and paramilitary activities in and against Nicaragua.” Judgement on the Merits(2014).
Cohen, Harlan Grant, et al. “Introduction: Legitimacy and International Courts.” (2017).
Crawford, James, and Thomas D. Grant. “International Court of Justice.” The Oxford Handbook on the United Nations (2017).
De Brabandere, Eric. “The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea.” The Law & Practice of International Courts and Tribunals 15.1 (2016): 24-55.
Dinstein, Yoram. The conduct of hostilities under the law of international armed conflict. Cambridge University Press, 2016.
Elias, Taslim. The international court of justice and some contemporary problems: essays on international law. Vol. 2. Springer Science & Business Media, 2013.
Hargrove, John Lawrence. “The Nicaragua Judgment and the Future of the Law of Force and Self-Defense.” American Journal of International Law 81.1 (2016): 135-143.
Malintoppi, Loretta. “Fact Finding and Evidence Before the International Court of Justice (Notably in Scientific-Related Disputes).” Journal of International Dispute Settlement 7.2 (2016): 421-444.
MATTERS, MUTUAL ASSISTANCE IN CRIMINAL. “DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS.” ICLQ 59 (2010): 193-205.
Wellens, Karel. “The International Court of Justice, Back to the Future: Keeping the Dream Alive.” Netherlands International Law Review 64.2 (2017): 193-212.
Wi?niewski, Adam. “International Courts and Legalism in International Law.” Polish Review of International and European Law (2017).
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