Internal Structure of International Courts and Tribunals – I

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Related Posts: Defining International Justice: Defying the States´ Practice in International Law | The Challenge of Standardizing International Law Categories | Stand-Alone and Structural. Standing and Ad Hoc. The Constitutive Instruments of Int’l Courts | Difference between Arbitral and Judicial Courts | What is International Justice: An Academic Approach | What are International Courts and Tribunals?

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• Introduction
• Constitutive Instrument
• Institutional and Non-Institutional Organs
  • 1945 United Nations Charter
  • 1994 United Nations Convention on the Law of the Sea
  • 1988 Statue of Rome
  • 2006 International Convention on the Settlement of Investment Disputes between States and National of Other States
• The Courts´ Organizational Structure and Chambers Concept

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Introduction

As if were a disclaimer, when it comes to a discussion of the terms International Courts and Tribunals, two recalls are needed; firstly, in general terms, International Court and Tribunal designate only the inter-governmental organizations instituting standing or permanent adjudicatory body tasked to deal with inter-state disputes of the immediate or direct interest of those constituent Governments, composed of members that are and act such as judges in the sense quite similar to the ordinary idea of the judges in the domestic judicial systems of the States around the world. Secondly, there is a slight difference between court and tribunal, which are, when nothing is flagged, deemed to be synonymous. Perhaps a third recall might be made: It is a happy-go-lucky mistake to think of International Courts and Tribunals as a global structure in which adjudicatory bodies are organized under a hierarchically judicialized design bound to maintaining a particular discipline without prejudice to the judges´ independence, and to assure a legal coherence in the law interpretation, respecting the liberty of conscience of those same judges. Although the dozens of International Courts and Tribunals (in the narrow sense) are modelled after a relatively typical pattern that indicates almost a footprint, they are stand-alone not only as to their organization but also mainly self-contained when they apply international legislation.
In addition, whenever discussing formulating concepts concerning International Courts and Tribunals, it is relevant to remember the Oversized Wig Theorem in International Justice: “Concepts should be in pretty general features, so they be applied to all the situations although do not fit quite well on any of them”.
All International Courts have an organizational structure; however, they are not alike in their specifics.
The analyses of the Chambers, as judicial units of International Courts and Tribunals, have to be performed taking into account their different constitutive instruments and respective Statutes, seeing that states produce such legal documents differently.
In this post, we discuss the Judicial Chambers as part of the judicial structure of the International Courts and Tribunals.

Constitutive Instrument

This post cannot cover the vast complexities associated with constitutive and non-constitutive instruments in International Law. Further reading is recommended to gain a deeper understanding of what represents a constitutive instrument, its implications, and the challenges arising from its interpretations, as well as how it differs from non-constitutive instruments. It is advisable to read The World Court and the Interpretation of Constitutive Treaties: Some Observations on the Development of an International Constitutional Law¹ (Edward Gordon).

In simple terms, serving only the purpose of comprehending the structure of international organizations creating international Courts, suffice to know that:

A constitutive instrument is an international document, whether an agreement or not, that establishes an organization with its governing rules that lay down its ends and purposes, its signatories’ commitments, membership, rights and responsibilities, and outline the organization´s structure, functions, and powers. That organization´s constitution may be referred to as a convention, agreement, or even charter, serving as the foundational legal framework in which the organization´s ratio essendi is described. For instance, the 1899 Convention on the Peaceful Settlement of International Disputes², the 1945 United Nations Charter³, the 1957 Treaties of Rome⁴ (the foundation acts of the European Community), the 1959 European Convention on Human Rights⁵, the 1992 Ospar Convention⁶ (for the Protection of the Marine Environment of the North-East Atlantic), 1994 Convention on the Law of the Sea⁷, the 1960 Organization for Economic Cooperation and Development⁸, the 1994 Marrakesh Agreement Establishing the World Trade Organization⁹, and the 1998 Statute of the International Criminal Court. All the aforementioned are examples of constitutive instruments that share a commonality: they create an organization where member states have closely aligned interests and shared goals to accomplish.

Organization and Organization´s Organs

While it may seem straightforward, the distinction between an organization and its organs is not always distinct, especially when the organization is named after one of its organs or lacks a formal name. This can lead to confusion, conflating a single part (organ) with the entire collection of parts (organization) that work together towards the organization’s goals.

An international organization (body) is an entity endowed (or not) with legal personality (resulting from its constitutive act), with a constitutional structure (or framework), and comprehending a set of organs (units or parts without legal personality) whose instrumental functions are synergistically cohered to achieve the organization´s ends.

As the human body is composed of organs with particular functions that serve the natural reason of keeping the organism alive, the organizations rely on their structural components´ working to reach their constitutional ends. One can understand an organization and its composing organs through its constitutive instrument (the organization’s main governing rule).

1945 Charter of San Francisco (the 1945 United Nations Charter)

The United Nations is both the organization and its name. The General Assembly, Security Council, Economic and Social Council, Trusteeship Council, Secretariat, and International Court of Justice are the organization´s (main) organs, whose functions are outlined in the United Nations 1945 Charter (the organization´s constitutive instrument) and coordinated to attain the UN´s purposes, which are provided in Article 1 of the UN Charter). Due to its massive importance in the global political context, the UN is also the centre of a real system of several other organizations.

Organization and organization´s organs cannot be confused; for instance, for creating the Extraordinary Chambers in the Court of Cambodia (a hybrid international criminal court), there was an agreement between the United Nations and the Government of Cambodia following Res. 57/228/2002¹⁰ of the General Assembly, being the former represented by the Secretary-General. This example clarifies how an international organization with a permanent judicial body (the International Court of Justice) could constitute a temporary international criminal court in partnership with a government for criminal purposes.

1994 Convention on the Law of the Sea (UNCLOS)

The 1994 Convention on the Law of the Sea (UNCLOS) – such as the already reviewed 1945 UN Charter – is the international constitutive instrument of an intergovernmental organization. How is it named? The convention did not specify a name for the established organization, which became widely known simply as UNCLOS (the convention´s acronym). To reach the Convention´s aims set out in the UNCLOS´s preamble, the convention established some organs: The Meeting of States, the Seabed Authority (the Authority), the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea, which are the (main) organs of that international organization instituted by UNCLOS.

1998 Statute of Rome

The intergovernmental agreement constituting the International Criminal Court is called “statute” because, unlike the 1945 UN Charter and UNCLOS, it is an instrument directly instituting the Court. Differing from the former, the Rome Statute is an instrument with only one institutional organ (the ICC) around which the Statute places its objectives enshrined in the ICC Statute´s Preamble.

1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention)

The 1966 ICSID and the 1998 Rome Statute are alike in that both establish a single institutional organ (contrary to the 1945 UN Charter, where there are six main organs) and have a single dispute settlement objective (aimed at resolving a particular kind of international conflict). Moreover, the organization´s is named after the name of its single institutional organ, which is another similarity it shares with the ICC´s Roman Statute. Thus, the International Centre for Settlement of Investment Disputes, or the Centre, is in charge of executing the foundational instruments´ objectives, as stated in the Preamble of the 1966 ICSID Convention.

1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention)

The OSPAR became worldwide well Known the ends envisaged in the 1992 OSPAR Convention´s Preamble.

PCA

Institutional and Non-Institutional Organs

Thus, a constitutive instrument is a general term designating an intergovernmental act that creates an international organization. That organization may be set up to accomplish varying ends, such as economic, environmental, humanitarian, judicial, military, trading, health, etc. In this post, we deal with the judicial ones. Notice that there are several bodies within an international organization with distinct functions, but not all of them are institutional.

Institutional organs are those tasked with the execution of the organization´s typical objectives.

1945 United Nations Charter

The United Nations—the principal global intergovernmental organization—is a multipurpose international organization that, under Article 1, is tasked with (1) international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; (2) developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; (3) achieving international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; (4) being a centre for harmonizing the actions of nations in the attainment of these common ends.

To reach those relevant ends, the United Nations comprises six institutional bodies, each serving one of those four purposes outlined in the 1945 Charter of San Francisco: the General Assembly, Economic and Social Council, Trusteeship Council, Secretariat, Security Council, and the International Court of Justice. Notice that UNCITRAL (United Nations Commission on International Trade Law), UNCTAD (United Nations Conference on Trade and Development), all the other numerous subsidiary organs of the UN General Assembly, of the ESOCO and of the Securty Council are ancillary bodies as their functions are to support those six institutional organs.

It is relevant to understand that the United Nations may be considered as a “broader system”, which is named UN System, where there are agencies and other institutions with their own ends. That is the case of the ICAO, the International Civil Aviation Organization whose ends are to make civil aviation “develop in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically”¹¹. Thus, the Contracting States to the ICAO Convention shall fulfil the commitments they undertook, and the most important statutory organs are the Assembly and the Council, as per Article 43. However, although they are political governance organs and in charge of ruling the organization´s pathway, they are not the organs in charge of performing the ICAO Convention´s desired objectives, which are trusted to second-stage organs, such as the Air Navigation Commission Air Navigation Bureau, the Air Transport Bureau, the Technical Co-operation Bureau, the Legal Affairs and External Relations Bureau.

The institutional character arises from the organ’s tasks being closely aligned with the organization’s objectives, rather than from its role in the organization’s governance or administration, which is often associated with the political elements of the administrative structure.

It is interesting to notice that ICAO has its own dispute settlement system to resolve conflicts arising out of the application and interpretation of its convention; the council (of States) is the first instance body to entertain a dispute, being possible a recourse either to the International Court of Justice or to an agreed-upon arbitral tribunal.

1994 United Nations Convention on the Law of the Sea

The UN Convention on the Law of the Sea (UNCLOS) has as its institutional organs: the UNCLOS Authority (International Seabed Authority) and the Commission on the Limits of the Continental Shelf. The International Tribunal for the Law of the Sea is not exactly an institutional organ of the UNCLOS but rather one of several dispute settlement organs of the complex resolution system developed in that convention. The meeting of States, notwithstanding its relevance, it is not institutional too, because it is not directly related to the purposes of the UNCLOS, being an organ of legislative and administrative command of those institutional organs.

ITLOS and the Seabed Disputes Chamber, as the Council of the ICAO, are not precisely in line with the objectives of the respective conventions, yet they are responsible for their legal interpretation and application.

1998 Statute of Rome

The same idea is present within the organization created through the 1988 Statute of Rome. That organization, which is named after its unique institutional organ – the International Criminal Court -, has in the ICC Assembly of the States Parties a quite significant body within the organization; yet, it cannot be considered an institutional organ of the Statute of Rome insofar as it is not, exactly, related to the ICC´s purposes but rather its general organization and regulation.

2006 International Convention on the Settlement of Investment Disputes between States and National of Other States

An ultimate example is the 2006 International Convention on the Settlement of Investment Disputes between States and National of Other States. n the organizations by that Statue created, is nor, exactly, but only one serves as the institutional core—the reason for which the organization was established, when we deal with stand-alone organizations establish the institutional organ. For instance, the 1988 Statute of Roman, whose institutional organ is the International Criminal Court.

The Courts´ Organizational Structure and Chambers Concept

Examining the constitutive instruments of International Courts and Tribunals, which include multilateral agreements or conventions of global or regional scope, it is evident that both independent and integrated (structural) judicial bodies possess a central spine. This framework comprises the rules establishing the court’s organization, which is divided into judicial and administrative structures. Such structures embody permanent and temporary organs functioning for the typical ends of the Court, that is the jurisdictional objective by means of which the disputes referred to the Court are settled, and for instrumental purposes, consisting of activities that support and turn possible the jurisdiction task, for instance, the financial and administrative ones.

Considering the picture, Chambers are jurisdictional units of the Court´s judicial structure.

The court’s constitutive instrument may lay down the norms on its administrative and judicial structure, for instance, the 1998 Statute of Rome instituting the International Criminal Court (ICC). However, the administrative and judicial organizations may be set out in an annex, as happened with the 1992 United Nations Convention on the Law of the Sea, constituting the International Tribunal for the Law of the Sea. There is not any juridical difference between them.

The relevant point is the legitimacy, in the sense that the organization (judicial and administrative) of the Court is constitutional, meaning that it cannot be modified, added, amended or subtracted without the States Parties’ consent, that is, the Court´s members (the judges) cannot do it in a plain administrative act such as a resolution or regulation. Indeed, that does not mean that modification in the Court´s structure (administrative or judicial) can only be done in the constitutive instrument or originally, as organs may be added or extracted posteriorly.

Analyzing the ICC’s constitutive instrument, no norm envisages the creation of an administrative organ for financial ends; however, later, in its first session, the assembly of the States Parties to the Rome Statute decided to create the Committee on Budget and Finance of the ICC¹².

Finally, the Court’s administrative and judicial structures are part of the same framework within which their organs have synergetic bonds. Yet, they are independent, one is not allowed to interfere with the other´s business.

Chambers are jurisdictional organs of the judicial structure of International Courts whose creation shall be provided in the constitutive instrument of the Court or by action of the appropriate political entity administering it; the chambers characteristics (role, form, composition, nature and competence) shall appear in the constitutive act.

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1. The World Court and the Interpretation of Constitutive Treaties: Some Observations on the Development of an International Constitutional Law Author(s): Edward Gordon Source: The American Journal of International Law, Vol. 59, No. 4 (Oct., 1965), pp. 794-833 Published by: Cambridge University Press Stable URL: https://www.jstor.org/stable/2197094. ↩︎
2. See the 1899 Convention below. ↩︎
3. See below the 1945 Charter. ↩︎
4. See the Consolidated version of the Treaties of Rome below. ↩︎
5. See below the 1959 European Convention on Human Rights. ↩︎
6. See below the 1992 Ospar Convention. ↩︎
7. See below the 1994 Convention on the Law of the Sea. ↩︎
8. See below the 1960 Convention for the Organization of Economic Cooperation. ↩︎
9. See below the Marrakesh Agreement Establishing the world Trade Organization on 15 April 1994. ↩︎
10. See the Resolution A/RES/57/228 below ↩︎
11. The reading of the Article 44 of the ICAO Convention is as follows: “The aims and objectives of the Organization are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport.” See the ICAO Convention below. ↩︎
12. See below the document of the First Assembly of the States Parties to the Rome Statute, whose reading is relevant to learning how the States dealt with the ICC’s administrative organization after its constitution and in accordance with its constitutional instrument. Notice that the members of the ICC (the judges) could not have created the Committee on Budget and Finance. ↩︎

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