Legal Basis for the Establishment of International Courts

Abstract

Contemporary institutions of international cooperation are very diverse, a particular example of which are international courts and tribunals. The past few decades have seen a very dynamic development of such institutions of international cooperation. Not only do they take an active part in settling regular international disputes between states, but also play a role in implementing state obligations arising under their membership in international organisations. With respect to the latter role, judicial bodies act as not only international courts, but they also perform the functions of constitutional courts, administrative courts and labour tribunals. Moreover, the jurisdiction of international courts and tribunals is being extended onto the process of implementing the international law of human rights and international humanitarian law. From the point of view of international law, the legal status, structure and competence of contemporary international courts and tribunals are very diverse. This is due to the nature and content of their constituent instruments. The determining criterium of classifying a court as international is its formation by an international treaty, usually a multilateral one. Permanent courts formed by such treaties usually operate within the institutional framework of international organizations (ICJ, CJEU, ECHR) and do not have their own international legal personalities. However, it may happen that a permanent judicial body formed by an international treaty operates outside the framework of an international organisation and has its own international legal personality (ICC). This is different compared to the formation of ad hoc judicial bodies. Their legal basis can be both international treaties, including bilateral treaties (e.g. RSCSL-SCSL), and UN Security Council resolutions (e.g. ICTY, ICTR, IRMCT). Some of the international criminal tribunals are the so-called hybrid tribunals. They are specific in nature and are referred to as internationalized tribunals. Their status is clearly different than that of other tribunals, as is the legal basis for their formation and the degree of their internationalisation. Due to the above-mentioned issues, the legal status of international courts is diversified. They need to be analysed against the backdrop of the underlying issue of subjectivity of international law, and also with reference to the law of treaties and the law of the international organisations.

Dr. iur. Aleksander Gadkowski, Lawyer at the Research and Analyses Office of the Supreme Court of the Republic of Poland and Postdoctoral Researcher at the Faculty of Law and Administration at Adam Mickiewicz University in Poznań, Poland. Former Lawyer at the Registry of the European Court of Human Rights (2016–2018). Author of articles on human rights law and European social law.