Kara Sears
International tribunals are independent bodies that hear cases involving states or international organisations and issue binding decisions based on international law. They are formed by treaties between nations or international organisations like the United Nations. International tribunals play a crucial role in adjudicating international disputes, facilitating settlements requiring specialised expertise, and resolving disputes according to international conventions. While there is no formal hierarchy between domestic and international tribunals, domestic tribunals can enforce international law and are responsible for implementing international tribunal judgments at the national level. The relationship between domestic and international tribunals is complex, and they operate in a state of constant interplay. This raises the question: can international tribunals apply domestic law?
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What You'll Learn
- Domestic tribunals fulfilling international judicial functions
- Domestic tribunals enforcing international tribunal judgments
- International tribunals' jurisdiction over domestic law
- Hierarchy between domestic and international tribunals
- International tribunals' application of domestic law in EU member states
Domestic tribunals fulfilling international judicial functions
In the past, domestic and international tribunals operated in almost complete isolation from one another. However, in the modern era, international law has become increasingly intertwined with national legal orders, resulting in a constant interplay between domestic and international tribunals. This interplay is characterised by the absence of hierarchical institutional links, as no higher courts exist to control the interpretation and application of international law norms across lower courts. Consequently, domestic tribunals are entitled to fulfil an international judicial function, and national judges increasingly perform international judicial functions when resolving disputes that fall within their jurisdiction.
Domestic judges are now fulfilling an international judicial function by applying international law norms to settle disputes. For instance, an inventor can apply to the European Patent Organisation (EPO) for a patent, which is equivalent to a bundle of national patents granted by the national authorities of every Member State. This means that domestic judges are complementary to international tribunals, as they share jurisdiction over cases related to the interpretation and application of international law.
Furthermore, domestic tribunals, as state agents, are obliged to enforce the judgments of international tribunals at the domestic level. International tribunals lack the coercive power to enforce their decisions within the territory of states, relying on domestic tribunals for this purpose. This dynamic highlights the potential for a hierarchical relationship between domestic and international tribunals, which could strengthen the respect for international rule of law.
While there is no formal hierarchy between the two types of tribunals, the establishment of hierarchical relations is not a utopian concept but rather an existing trend in their respective judicial routines. This hierarchy could foster uniformity and predictability in the application and interpretation of legal rules, as well as promote equality before the law. However, it is important to note that the creation of a hierarchy between domestic and international tribunals is not without its challenges, and the relationship between these judicial bodies continues to evolve.
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Domestic tribunals enforcing international tribunal judgments
International tribunals provide a venue for adjudicating international disputes, facilitating the settlement of problems requiring specialized expertise, and resolving disputes pursuant to an international convention. There are a wide variety of international courts and tribunals that have varying degrees of relation to the UN. These include the ICJ, which is a principal organ of the organization, and the ICC, which is independent of the UN.
The interplay between domestic tribunals and their international counterparts is an interesting aspect to consider. Domestic tribunals are entitled to fulfill an international judicial function, and national judges perform this function when they have recourse to international law as a basis for dispute settlement in cases within their jurisdiction. In this sense, domestic judges are complementary to international tribunals, as they also have jurisdiction over cases related to the interpretation and application of international law.
However, it is important to note that there is a lack of hierarchical institutional links between domestic and international tribunals. There are no written rules in domestic or international law that establish superiority or inferiority between them. No higher courts can control the interpretation and application of international law norms and principles in the decisions of lower courts. Both domestic and international judicial organs are legally autonomous and independent from one another.
Despite this lack of formal hierarchy, domestic tribunals are obliged to enforce the judgments of international tribunals at the domestic level. International tribunals do not have the power to dispose of coercive power within the territory of states, so they rely on domestic tribunals for this aspect of enforcement. This dynamic highlights the complex relationship between domestic and international legal systems and the ongoing efforts to balance sovereignty and international cooperation in judicial matters.
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International tribunals' jurisdiction over domestic law
International tribunals are judicial bodies that hear cases involving states or international organisations and issue binding decisions based on international law. They are formed by treaties between nations or by international organisations like the United Nations. Examples include the Nuremberg and Tokyo tribunals established after World War II, the International Court of Justice (ICJ), and the International Criminal Court (ICC). International tribunals can be created by the UN Security Council to enforce its decisions, by multinational conventions like the Rome Treaty, or by regional bodies.
Domestic tribunals are entitled to fulfil an international judicial function when interpreting and applying international law to cases within their jurisdiction. They are complementary to international tribunals and are obliged to enforce the judgments of international tribunals at the domestic level. However, international tribunals lack the coercive power to enforce their decisions within the territory of states, relying on domestic tribunals for implementation.
The relationship between domestic and international tribunals lacks clear hierarchical institutional links. There is no established superior or inferior position between them, and no higher court controls the interpretation and application of international law norms by lower courts. Domestic and international tribunals are legally autonomous and independent from one another.
However, certain international tribunals have specific jurisdictions. For example, the International Tribunal for the Law of the Sea (ITLOS) independently adjudicates disputes arising from the interpretation and application of the UN Convention on the Law of the Sea. The UN Dispute Tribunal (UNDT) and the UN Appeals Tribunal handle internal UN disputes and disciplinary matters.
In the European context, the European Court of Justice (ECJ) has declared that proposed international tribunals, such as the European and Community Patents Court, are unlawful as they are not composed solely of EU Member States or entirely of non-EU Member States. This highlights a paradox in the notion of the supremacy of EU law. The ECJ insists on being the final arbiter of EU law, but its rigidity may hinder the development of EU law and the uniformity of its interpretation across Member States.
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Hierarchy between domestic and international tribunals
The interplay between domestic tribunals and their international counterparts has been characterised by a lack of hierarchical institutional links. There are no written rules in domestic or international law that establish superiority or inferiority between them. No higher courts can control the interpretation and application of international law norms and principles in the decisions of lower courts.
However, it is possible and desirable to envisage a hierarchy between domestic and international tribunals. Hierarchy permits the efficient enforcement of judicial decisions and avoids conflicts between judicial organs operating within a legal order. It also fosters uniformity and predictability in the application and interpretation of the same body of legal rules by many different tribunals.
In practice, domestic tribunals are entitled to fulfil an international judicial function. National judges perform an international judicial function whenever they have recourse to international law as a legal basis for the dispute settlement of the cases brought to their jurisdiction. Domestic judges are complementary to international tribunals, as they also have jurisdiction over cases related to the interpretation and application of international law.
Additionally, domestic tribunals are state agents and are thus obliged to enforce the judgments of international tribunals at the domestic level. International tribunals cannot dispose of the use of coercive power within the territory of states, so they depend on domestic tribunals in this regard.
The establishment of a formal hierarchy between domestic and international tribunals has traditionally been a "taboo" for international legal scholars and operators of the domestic and international legal systems. However, this hierarchy is not utopian but an ongoing trend in their judicial practice.
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International tribunals' application of domestic law in EU member states
The European Union is supposed to have a self-contained legal system, with EU law interpreted consistently across all 27 member states. However, there is no federal court system in the EU, unlike in the United States. If an individual believes their EU legal rights have been breached, they cannot directly approach the European Courts in Luxembourg unless the accused is an EU institution. Instead, the plaintiff must go through a national court, which is expected to apply EU law faithfully.
The European Court of Justice (ECJ) ensures that the interpretation and application of EU law are consistent across all member states. It consists of two courts: the Court of Justice and the General Court. The ECJ is a multilingual institution, with cases heard in any official language of the European Union.
The ECJ has declared a proposed European and Community Patents Court (ECPC) to be unlawful, highlighting a paradox in the notion of the supremacy of EU law. The ECJ insists that it must be the final arbiter of EU law. This decision has implications for other international tribunals, which, by the ECJ's reasoning, would also be deemed unlawful.
There is an interplay between domestic tribunals and their international counterparts, with domestic tribunals entitled to fulfill an international judicial function. Domestic judges perform an international role when they have to recourse to international law as a basis for dispute settlement in cases within their jurisdiction. Domestic judges also have jurisdiction over cases related to the interpretation and application of international law.
However, there is a lack of hierarchical institutional links between domestic and international tribunals. No higher courts can control the interpretation and application of international law norms by lower courts. Domestic and international tribunals are legally autonomous and independent from one another.
There is an argument that a hierarchy between domestic and international tribunals is possible and desirable. A hierarchical relationship could foster uniformity and predictability in the application and interpretation of legal rules and encourage equality before the law.
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Frequently asked questions
International tribunals provide a venue for adjudicating certain types of international disputes, facilitating the settlement of problems requiring specialized expertise, and resolving disputes pursuant to an international convention. They are formed by treaties between nations or by an international organization.
There is no clear hierarchy between domestic and international tribunals. Domestic tribunals are entitled to fulfill an international judicial function and are complementary to international tribunals, as they also have jurisdiction over cases related to the interpretation and application of international law. However, international tribunals cannot directly enforce their decisions within the territory of states and are dependent on domestic tribunals for this.
The European Court of Justice (ECJ) found that the right to privacy, established in article 8 of the European Convention on Human Rights, cannot be extended to the business activities of private persons. This interpretation of the right to privacy would then be applied by domestic courts within the EU.
